ACCOUNTS AND ACCOUNTING OFFICERS. Where the same person is a contractor for two articles under separate contracts, and fulfils one and fails in the other, and presents his account to the treasury for settlement, the accounting officer may set off, in the adjustment, such amount as may be due from him to the government, upon his claim against it. This may be done in all cases where the relation of debtor and creditor arises in the settlement of the accounts of the same individual, as the grounds of the credits and debits are not material. SIR: I had the honor to receive your letter of the 16th instant, requesting my opinion on the following question: Whether the same person being a contractor for two articles under separate contracts, and fulfilling one and failing in the other, it is competent for the department to retain the money due on the first, for the deficiency on the second. For instance: A contracts to furnish tobacco and beef, making a separate contract for each; he furnishes the tobacco, but fails to furnish the beef: can the department retain the money due him for tobacco, to cover the loss incurred by the government in consequence of his failure to fulfil his contract for beef? The United States are not suable, but may sue. All accounts are adjusted at the treasury, and money due the government may be set off in that adjustment. The principle is universal that money will not be paid to one from whom money is due to the party paying. It is the right of every creditor to withhold payment to the extent of a debt due to himself. It makes no difference on what grounds the relation of debtor and creditor arises. If, therefore, by the execution of one contract the government becomes indebted to a contractor; and, by reason of failure to execute another, the same contractor becomes indebted to the government for the excess of price paid for the contract article over the contract price; such indebtedness ought to be discharged before payment is made, and may be set off against the money due. The stipulation usually inserted in contracts, that ten per cent. of the amount of deliveries shall be reserved to secure complete execution, and requiring security for the faithful performance of contracts, are but additional safeguards to the public interests, and do not deprive the government of the general right which applies to all cases of debtor and creditor. I have no doubt that the question propounded is to be answered affirmatively. I have the honor to be, respectfully, sir, your obedient servant, Hon. GEORGE BANCROFT, Secretary of the Navy. PROCEEDINGS BY AND BEFORE THE CHOCTAW COMMISSIONERS. The commissioners to carry into effect the treaty had no authority to take proof of any claim in favor of an assignee of an Indian who transferred his claim within the five years mentioned in the 9th section of the act of the 23d of August, 1842, inasmuch as they were expressly denied any authority to recognise or allow to an Indian, or to the assignee of an Indian, any claim which had been so assigned, in whole or in part. The counsel for the Choctaws, although enjoying the privileges of his relations, may be examined as to which of the Choctaw claimants are his clients; when and by whom he was retained; whether he or his clients is or are, or has or have been, in possession of any document which the commissioners may deem important as evidence; and what disposition has been made of it. (18 Johnson, 329; Greenleaf's Ev., 273.) If, in determining whether any of the cases are within the 9th section of the act of 23d August, 1842, it appear that an assignment, or an agreement to assign, has been reduced to writing and executed by the parties, the written instrument must be produced if in the power of the party to do so; if not, secondary evidence of its contents is admissible. The destruction of the paper, or its being in possession of the claimants or their counsel and not produced on notice, excuses secondary evidence. As to whether a power of attorney will operate as an assignment depends upon the form of the instrument; where it forms a part of a contract, or is coupled with an interest, it may be regarded as an assignment within the 9th section of the act of 23d August, 1842. The power of attorney in this case, expressing a valuable consideration, and being irrevocable, and containing no reservation to the maker, is an assignment prima facie, but susceptible of explanation by parol testimony and circumstances. (10 Wheat., 174; 4 Pickering, 376) SIR: I had the honor to receive your letter enclosing a communication from the Choctaw commissioners, and requesting niy opinion on the points therein stated. By the act of the 23d August, 1842, the board of commissioners organized to carry into effect the treaty with the Choctaw Indians, called the treaty of Dancing Rabbit creek," are invested with very extended powers. Their duties were to ascertain by evidence whether any, and which of the Choctaws, had complied with the requisites of the 14th article of the treaty; to give title to its benefits; to determine the quantity of land to which a Choctaw or person named in the supplement to the treaty was entitled in virtue thereof; and, in general, to ascertain and determine all the rights conferred by the treaty stipulations which were unsatisfied. In performing these duties, they are invested with authority to issue subpoenas to compel the attendance of witnesses, with the same effect as if issued by a court of record, and to receive the testimony of the witnesses when in attendance. The 9th section forbids the allowance of any claim under the 14th article of the treaty, if the commissioners shall be satisfied, by such proof as they may prescribe, that such claim had been, previous to the expiration of five years from the ratification of said treaty, assigned, either in whole or in part; and in case of a partial assignment, or agreement for an assignment thereof, the same shall be allowed so far only as the original Indian claimant was, at that date, the bona fide proprietor thereof. The commissioners, therefore, had no authority to take proof of any claim in favor of an assignee of an Indian, but were expressly denied any authority to recognise or allow, either to the Indian or to the assignee, any claim which had been so assigned. Where an Indian claim was presented to the board, it was in his behalf and for his benefit. Growing out of the 14th article, it was to be allowed, if the Indian proved that he had complied with the requisites which are specifically enumerated in the 3d section of the act of 1842, unless it should appear to the satisfaction of the board, from proofs before them, that the claim had been assigned, in whole or in part. Charged with these important duties, and invested with these powers, the board had all the authority to receive evidence which a court of law would have had with jurisdiction in the case, and were bound by legal rules of evidence to the same extent, but no further. From the various questions propounded, and the statement which accompanies them, it appears that many claims were presented, under the 14th article of the treaty, by Charles Fisher, esq., who is represented in the statement as being an attorney-at-law of the State of North Carolina. It was alleged that these claims were affected by the 9th section of the act of 1842, and Mr. Fisher was called as a witness. He objected to testifying, and said, on his voire dire, that he was interested in all the cases he had presented to the board, as well as in others that had come before the same; that his interest was in kind, or what might be recovered in land or scrip; that his interest was for his services in the past ten years in managing the Choctaw cases before the board and before Congress, and also as an attorney before the board. He further pleaded his privilege as counsel for the claimants, and that all his knowledge in relation to the matters before the commissioners was derived from confidential communications with his clients. This last objection was allowed by the commissioners; and the several questions propounded to me are predicated on the assumption that Mr. Fisher, being counsel, could not be interrogated as to the matters which came to his knowledge in the confidential and privileged commu nications with his clients. The inquiry is, however, presented, to what extent and for what purposes he may be examined, and how far the priv ilege protects him? It has been held that this privilege applies only to cases of pending or contemplated suits; but the moderu decisions have been based on a larger and more philosophical view of the principles on which the rule is founded. The great object of the rule is to protect; and seems plainly to require that the entire professional intercourse between client and attorney shall be inviolable. It is not on account of any particular importance which the law attributes to the business of legal professors, or to any particular disposition to afford them protection; but it is out of regard to the interests of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judi cial proceedings. If such communications were not protected, no man would dare to consult a professional adviser with a view to his defence or to the enforcement of his rights. (Greenleaf, 273, and cases there cited.) And this protection is now not qualified by any reference to proceedings pending or in contemplation. The privilege is not personal to the counsel, but is a rule of law for the protection of his client The principles on which the rule is founded necessarily impose on it some qualifications. An attorney may be compelled to disclose the name of the person by whom he was retained, in order to let in the confessions of the real party in interest; likewise the time when an instrument was put into his hands. He may also be called on to prove the identity of his client; the fact that he or his client is in possession of a certain document, for the purpose of letting in secondary evidence of its contents. Mr. Fisher's privilege cannot exist in any case unless he appears to the commissioners to bear the relation of counsel. He was liable to be examined as a witness in any case before them. To excuse himself, he must be brought within the exception. He may, therefore, be examined as to which of the Choctaw claimants are his clients, and when and by whom he was retained, but not as to the terms or conditions of the retainer. He may also be called on to state whether he or his client is or has been in possession of any document which the commissioners may deem important as evidence, and what disposition has been made of it; but cannot be interrogated as to its contents. The privilege secured to the client by protecting his confidential communications is accompanied necessarily by another consequence. The facts stated by Mr. Fisher to bring himself within the exception, and relieve himself from the duty of testifying, nust be held to be made with the knowledge and approbation of those whom he represents, and may be regarded by the commissioners as established facts, to have their full weight against the claimants. In claiming the exemption for him, they recognise him as their counsel and agent before the board, and are bound by his admissions. If, in determining whether any of the cases are within the 9th section, it shall appear that the assignment or agreement to assign was reduced to writing, and, thus written, executed by the parties, the general rule of law is, that the written instrument must be produced. If it appear that it is not in the power of the party desiring to use the evidence to produce the deed, then secondary evidence may be received of its contents. The destruction of the paper is one of the excuses for non production; so, if the writing is in possession of the claimant or his counsel, and notice to produce has been given, and it is not produced, secondary evidence is admissible. And it would not be a rigorous or unauthorized application of this rule to admit the secondary evidence, if it shall appear to the satisfaction of the commissioners, that, at the date of the notice to produce the written instrument, it was in the possession or subject to the control of the counsel or claimant, and beyond the control of the United States or the commissioner, and is not produced. In the case of Jackson vs. Nielson and wife, (18 John., 329,) the court held that the attorney was properly required to testify to the fact where the deed was at the time of trial; and, on page 333, state, when a party withholds and suppresses a deed to which his adversary has a right, every intendment should be made against him. We think the evidence of the contents of the deed should have been submitted to the jury, with strong intimations that they ought to believe the premises to be included in the deed; as, if they were not, the plaintiff, by producing it, could show with certainty how the fact was; and that its nonproduction, the deed being in court, was very strong presumptive evidence against the plaintiff. So, in this case, when Mr. Fisher refused to testify, on the ground that he was counsel, and interested in kind for hist professional services; and two witnesses swore that powers of attorney or contracts were made by which he (Fisher) was to receive one half of the Indian claimants' lands for his services in recovering said lands, and that the written contracts went into his possession as such; and the original powers of attorney or contracts are not produced to correct any error in the secondary evidence,-it appears to me that all the rules of law touching the subject would, from the fact of withholding them, raise a strong presumption against the claimants. The propositions thus stated will enable the commissioners to proceed with the examinations before them, without giving specific answers to the several questions propounded. I prefer not to give an opinion on a hypothetical state of facts, but rather to state legal principles, and leave their application to the commissioners. The deed from Naholabmuntubbe is an irrevocable power of attorney, which confers on John Johnson, for a valuable consideration, full power and authority to obtain his lands er scrip, and to sell either or both ab solutely, at the pleasure of the attorney in fact. There is no reservation in favor of the grantor. Is this an assignment, within the 9th section of the act of 1842? In the case of Hunt vs. Rousmaniere's administrator, (10 Wheat., 174,) the Supreme Court reviewed the law on the subject of powers of attorney, and held that a letter of attorney may in general be revoked by the party making it, and is revoked by his death. Where it forms part of a contract, and is a security for the performance of any act, it is usually made irrevocable in terms, or, if not so made, is deemed irrevocable in law; and such a power of attorney, though irrevocable during the life of the person giving it, becomes, at law, extinct by his death. But if the power be coupled with an interest, it survives the person giving it, and may be executed after his death; and such a deed is an assignment within the 9th section. The deed in this case is made for a valuable consideration, and is prima facie an assignment. The words admit of explanation, for the instrument is not a direct, but only a constructive assignment of the lands or scrip, or part of them. ering, 376.) The commissioners may, therefore, consider the power of attorney as prima facie evidence of assignment, susceptible of explanation by parol testimony and circumstances; and they will disallow only so much of the Indian's claim as they may be satisfied by the testimony was in fact assigned to the attorney by the contract of which this irrevocable power of attorney was a part. I have the honor to be, respectfully, sir, your obedient servant, Hon. WILLIAM L. MARCY, (4 Pick J. Y. MASON. Secretary of War. COMPENSATION OF PURSERS ATTACHED TO WAR STEAMERS. The purser attached to the war steamer Missouri is entitled to the same rate of compensation as pursers of frigates of the same rates. War steamers of the tonnage, spars, rigging, and armament of frigates, and rated as such by the department, may be regarded as frigates, for the purposes of determining the compensation to which the pursers thereof are entitled. If, however, it be found that this construction of the law produces any embarrassment in the outfit or allowances of steam vessels, it may be obviated by a regulation arranging all the vessels of war using steam-power into two classes. ATTORNEY GENERAL'S OFFICE, May 30, 1845. SIR: I had the honor to receive your communication of the 21st of March, requesting my opinion upon the case presented by the Second Comptroller of the Treasury in his letter transmitted with yours. The question presented by the Comptroller is, Whether the United States vessels Missouri and Mississippi, under the act of Congress of 26th August, 1842, are to be regarded as frigates or as steamers of the first class, and the pay of pursers attached to them regulated accordingly? The question is one of much difficulty, and I have not entire confidence in the conclusions at which I have arrived. It appears to me that the reasoning em ployed by the accounting officers is very technical. It is often unsafe to found conclusions on the literal construction of words employed, when, in several laws relating to the same subject, it is found that Congress has employed different terms in reference to the same vessel. 'I'he Missouri and Mississippi were built by virtue of the act of Congress of 3d March, 1839. Authority was given to build three steam ves |