establishment, and then goes on expressly to authorize the payment from it of the "expenses of suits in which the United States are concerned." This designation certainly embraces such services as those now in question. Without going into a minuteness of detail, which is impossible, such services could not have been more clearly designated.

To the SECRETARY OF THE TREASURY.

H. D. GILPIN.

COLLECTORS' BONDS, UNDER ACT OF JULY 4, 1840.

Under the act of July 4, 1840, all collectors of customs are required to execute bonds embracing, in terms, the new duties to which they are or may be subject.

Even at ports where there is a receiver general, there are some new and increased fiscal duties imposed on the collector which did not previously belong to him.

If the proper department shall deem it expedient, it may, in lieu of a new bond, embracing all the duties of the collector, take a new bond in a suitable penalty, embracing the new duties only, leaving the old one outstanding.

ATTORNEY GENERAL'S OFfice,
December 7, 1840.

SIR: I had the honor to receive your letter, enclosing that of the collector of Boston, and inquiring whether, under a proper construction of the seventh and eighth sections of the act of 4th July, 1840, the department could dispense with a new bond from that officer, as the additional duties imposed by that act on depositaries of public moneys are not actually or necessarily performed by the collectors of the customs at places where an office of receiver general or treasurer of the mint is established, and because it is regarded as doubtful whether collectors at those places are "depositaries," within the proper meaning of that act.

In a previous communication, having reference to the collector of New York, (where, as at Boston, there is a receiver general,) I expressed the opinion that the act required a new bond to be executed, embracing, in terms, the new duties and responsibilities to which the collector might be subject. I have carefully reflected upon the ground taken by that officer, that he has performed no additional duties since the passage of the act; and that, in fact, the responsibilities have been lessened by the establishment of the office of receiver general. It has not, however, satisfied me that my previous view is incorrect. The reason may show (as it undoubtedly does) that a new bond has not been necessary for the security of the United States, but not that the department is authorized to dispense with such an instrument.

The eighth section of the act of July 4, 1840, positively directs the execution of new bonds, suitable in their terms to meet any new and increased duties imposed by that law on any existing officer, and to cover any new responsibilities arising under that or any other act of Congress. Previous to its passage, the collectors of customs were required to "receive all moneys paid for duties, and to take bonds for securing the payment thereof; and to pay to the order of the officer who shall be authorized to direct the payment thereof, the whole of the moneys which they might respectively receive, [such moneys only excepted as they were otherwise by law directed to pay;] and once in every three months, or oftener if re quired, to transmit their accounts for settlement to the proper officer.”

These provisions made them, in regard to public moneys, mere collecting officers; they were not depositaries; the money stood to their individual credit as collectors, until it was paid over to the Treasurer of the United States. The sixth section of the act of July 4, 1840, declares that all collectors of customs (making no exception whatever) shall keep safely, without loaning or using, all public money collected by them, and all public money at any time placed in their possession and custody; and faithfully and promptly make transfers and payments thereof, as directed by the proper department or officer of the government; and do and perform all other duties as fiscal agents of the government, imposed on them by law or any lawful regulation of the Treasury Department; and do and perform all duties required by law, or by direction of either of the executive departments, as agents for paying pensions, or for making any other disbursements which the departments might lawfully require, and which were of a character to be made by the depositaries constituted by that act. It is also declared that it shall be the duty of the collectors of customs to receive, at stated periods, certain proportions of the public moneys collected by them, in the currency therein designated, and in no other; it is declared that, if they shall themselves use or loan any portion of the public money, they shall be liable to punishment for a felony; and in various sections, various provisions are introduced, and details of official duty are prescribed, which necessarily arise out of these changes in the character of the office.

It cannot be denied that these enactments create, in the language of the law, new and increased duties, and impose a new "responsibility arising under this act of Congress," which did not previously belong to the office of collector of the customs. Indeed, this is admitted to be the case everywhere, except at places in which there may be a receiver general or a treasurer of the mint. It is contended that, where these offices exist, the new and increased duties and the additional responsibilities are not imposed on the collectors of customs, but that their character and functions remain in every respect the same as they were before the passage of the law of the 4th July, 1840. To this it may be answered, in the first place, that the words of the act make no exception, but embrace in terus all collectors of customs whatever. It would require a very strong evidence of the intention of the legislature, derived from the clear provisions of the rest of the act, to authorize the inference that the exception in question was intended; it would seem, indeed, to require that the imposition of these new duties and responsibilities on the collectors of customs so situated should be evidently inconsistent with the other provisions of the act, before we could justify ourselves in relieving these officers from them, in the face of the language directly including them. But, independently of this consideration, I am at a loss to perceive why the mere fact of there being a receiver general, or treasurer of the mint, at a particular place, is to be regarded as freeing the collectors of the customs from these additional responsibilities. Some of these, it is evident, certainly attach to such collectors as well as to others-such as their obligation to keep the public money without loaning or using it; to hold it as public depositaries, from the moment it comes into their hands, and to collect it in certain and specified proportions; and, although it is true that the scope and language of the law impose the general fiscal agency on the receivers-general and treasurers of the mint at places where they are situated, yet, as the public

service might, in some emergencies, require that some portions of such agency should be performed by the collectors at those places as well as at others, a provision for that contingency seems to be within the spirit of the law, as it certainly is within the terms. The whole scope of the act, as I understand it, is to impose upon all officers intrusted with public money increased responsibility, under additional safeguards, from the moment it comes into their hands, and to make them all subject to the performance of such fiscal agencies as the public service may require. The very breadth and extent of this exclude the idea that all the agencies and duties thus provided for should be at all times performed by each functionary; but do not afford any ground for neglecting to provide for their performance, if necessary, under all the securities that the law contemplates.

I am aware that some reliance has been placed on the language of the eighth section, which confines these new bonds to "the several deposita ries mentioned in the act, whose official bonds are not expressly provided for;" and the opinion is entertained, that the collectors at places where there are receivers general or treasurers of the mint are not such depositaries. To this it may be answered, in the first place, that the sixth section (and it is the only section previous to the eighth in which any other depositaries than the receivers-general and treasurers are referred to) directs all collectors" to keep safely, without loaning or using, all public money collected by them, or otherwise at any time placed in their possession or custody;"-language than which no other can more clearly define, describe, or constitute "a depositary." But, again: it is the same sixth section, and that only, which constitutes any collectors of customs as depositaries; and if we exclude from this class of officers the collectors of New York and Boston, we must either draw a distinction between them and the other collectors, (which the words of the sixth section give no warrant for,) or we must assert, in direct contradiction to the eighth section, that no collectors whatever are depositaries. Nor are these considerations, taken from the language of these sections, the only ones which make it evident to my mind that these collectors are embraced within the term "depositaries." I think so, because the eighth section, and indeed the whole scope of the law, evidently meant that wherever a new duty was required, or a new responsibility imposed, a suitable alteration or addition should be made to the bond. As before observed, there are, unquestionably, some new duties and responsibilities created in the case of all collectors, and it is evidently contemplated that others may arise. To give, therefore, a confined (not to say a technical) meaning to the term "depositaries," which should exempt some of them from the corresponding obligation in regard to their bonds, would be as great a deviation from the spirit and intention of the law, as I have endeavored to show it would be from the fair interpretation of its language. The fact, that at places where there is an office of receiver-general or treasurer of the mint, but few of the functions of a depositary will or ought to be discharged by the collector of the customs, may be true; but this does not, in my opinion, conflict with the view of the law which I have taken, or authorize the conclusion that it was not intended to make them liable to perform such functions, any more than the same circumstance would exempt them entirely from being even required to perform the duties of fiscal agents.

I observed, in the communication to you on this subject before referred to, that where the present security is sufficient, and seems to be reasona. able and safe, in the opinion of the proper officer of the department, a new bond for the same amount, but suitable in its terms to meet the new and increased duties, may be substituted for the existing one, and need not be in addition thereto. I now further observe, that, should it be deemed, on the other hand, more expedient, and likely to occasion less hardship to those collectors who have given security in a very large sum for the faithful performance of their present duties, an additional bond may be taken, in the new and suitable terms referred to by the act, in an amount sufficient to meet merely their new responsibilities, leaving the existing bond to cover their original duties. The authority given by the act, to increase the amount and strengthen the obligation by fresh securities, at any time when the Secretary of the Treasury shall deem it to be advisable, places in his hands ample power to protect the public interests whenever the regulations or directions of the departments shall impose upon these collectors any of the fiscal agencies or other functions not now practically exercised, for which the act provides.

To the SECRETARY OF THE TREASURY.

H. D. GILPIN.

LIABILITY OF ASSISTANT QUARTERMASTER AS DRAWEE AND GARNISHEE.

Where an assistant quartermaster gave a draft on another assistant quartermaster to A, who sold it to B, who surrendered it for an authority to draw on the maker for the amount, and afterwards drawing therefor by making a bill and selling it to C, who caused it to be presented to the drawer of the first draft, who had been served with papers at the suit of A, as garnishee-DECIDED, that the drawee should disregard A's process, and that he pay the draft which he had authorized to be drawn upon him.

ATTORNEY GENERAL'S OFFICE,
December 8, 1840.

SIR: I had the honor to receive your letter of the 24th November, relative to the claim of Doctor John Baldwin for the amount of a draft held by him on Assistant Quartermaster Plummer, and inquiring whether the department is authorized to direct its payment.

It appears from the papers submitted to me, that a considerable sum of money was due to Arthur McGill, by Assistant Quartermaster Plummer, at Cedar Keys; that, not having funds there to pay the amount, he gave McGill a draft on Assistant Quartermaster Clarke at New Orleans, which was received by McGill in payment; that the latter subsequently sold this draft to James P. Worth, who called on Assistant Quartermaster Plummer, the maker of the draft, and, as he was about to proceed to New Orleans, offered to surrender the same on receiving in lieu thereof an authority to draw on him (Plummer) for the amount. This arrangement the latter states he gladly made, and gave him a written power to that effect. On the arrival of Worth at New Orleans, he negotiated a bill on Assistant Quartermaster Plummer, with Doctor John Baldwin, exhibiting the above written power as his authority; the same having been previously submitted by Doctor Baldwin to Assistant Quartermaster Clarke, who declared it to be genuine. The bona fide purchase of the bill by Doctor

Baldwin for its full consideration is admitted. It was presented to Assistant Quartermaster Plummer, and he declined payment for want of funds. He says, in terms, "Had I been in funds when the bill of exchange was first presented, it would have been promptly paid." After all these occurrences had taken place, Arthur McGill, it appears, instituted a suit at Cedar Keys against Worth, in which an attachment was issued against the funds of the latter in the hands of Assistant Quartermaster Plummer, and he was summoned as garnishee. Upon this proceeding he refused to pay the bill of exchange held by Doctor Baldwin, and still refuses.

I am of opinion, in this state of facts, that the attachment did not operate on the funds in his (Assistant Quartermaster Plummer's) hands, upon which the bill was drawn; and that the same ought to have been, and now should be, paid to Doctor Baldwin.

Should you communicate this opinion to Assistant Quartermaster Plummer, it will be proper to guard against the inference that, by so doing, the department considers the United States in any way concerned in the transaction, or answerable for any damages arising or accruing to either party.

To the SECRETARY OF WAR.

H. D. GILPIN.

RIGHT OF PURCHASER OF THE AMISTAD TO A REGISTER.

The Spanish schooner Amistad having been condemned (not for any breach of the laws of the United States,) and sold by order of the district court of the United States for the State of Connecticut, and the purchaser having applied for a register-DECIDED, that he is not entitled to a register, but that documents showing the order of sale, its execution by the proper officer of the United States, and the purchase and title of the present owr.er, ought to be issued to him.

ATTORNEY GENERAL'S OFFICE,

December 14, 1840.

SIR: I had the honor to receive your letter of the 8th instant, enclosing several documents from the Comptroller of the Treasury, and inquiring whether, under the provisions of the second section of the act of 31st December, 1792, a register and other papers can be granted to the purchaser of the Spanish schooner Amistad, which was, it is stated, lately sold under a decree of the district court of the United States in Connecticut.

As there is no transcript of the decree or sentence of the court, of the order and terms of sale, or of the marshal's return, nor any report of them from that officer, or the district attorney, among the papers sent me, I am unable to ascertain what were the grounds of the decree against the vessel, and the nature of the sentence. It appears, however, to be certain that she was not "adjudged to be forfeited for a breach of the laws of the United States," and that an appeal from the decree against her by the district court, for whatever cause it was given, is yet pending and undecided. "An appeal," say the Supreme Court, in the case of Yeaton vs. the United States, (5 Cranch, 280,) "supersedes the sentence altogether; it is not res adjudicata till the final sentence of the appellate court; it is lawful to allege what was not before alleged, and to prove what was not before proved."