OPINIONS OF HENRY D. GILPIN, OF PENNSYLVANIA: APPOINTED JANUARY 11, 1840. INTEREST ON STATE STOCKS HELD IN TRUST FOR CHICKASAWS. Interest cannot be legally claimed upon the stocks issued by the State of Maryland, and re- ATTORNEY GENERAL'S OFFICE, SIR: I had the honor to receive your letter of the 23d of January, relative to the payment of interest by the State of Maryland on the certificate of State stock, "redeemable at the pleasure of the State," which is held by the department in trust for the Chickasaws. You do not state whether an act of the legislature was passed appropriating the funds to redeem the principal; but as I understand from the statement of the Treasurer, to which you refer, that "these funds were provided by the State, and ready on that day," and would then have been paid if called for, I presume such was the case. Though it is usual, and certainly desirable, that more explicit public notice should be given, yet I am of opinion that such a legislative provision ought to be regarded as notice by a State to the holders of its stock, and that there is no legal claim to subsequent interest. To the SECRETARY of the Treasury. H. D. GILPIN. REPAIRS IN FRONT OF LEASED TENEMENTS IN WASHINGTON. Repairs in front of leased tenements in the city of Washington are, by act of the corporation of the 1st of August, 1831, required to be made by the owners, who are, in general, the lessors; and where the leases are silent upon the subject of such repairs, the law regulating repairs in the District may properly be considered and taken as a part of the contract. ATTORNEY GENERAL'S OFFICE, SIR: I had the honor to receive your letter of the 30th January, enclosing the lease of Mr. Tayloe of the building now occupied by the Post Office Department, with copies of the leases of the Treasury Department therein referred to. In reply to your inquiry whether the lessee is bound to repair the pave. ment in front of the building, I have to say that there is nothing in the terms of this lease, or of those of the Treasury Department referred to therein, which imposes that obligation on the lessee. The law regulating such repairs in the District ought, however, to be properly considered as a part of the contract, no express stipulation being made on the point. I find, by reference to the act of the corporation of the 1st of August, 1831, that the owner of the adjacent lot is required to make such repairs. If, therefore, there is no subsequent regulation on the subject, the repairs in this instance must be made by the lessor. To the POSTMASTER GENERAL. H. D. GILPIN. CERTIFIED FEES OF MARSHALS-ACCOUNTING OFFICERS. Where a marshal received, in due course of law, processes of summons and subpoena for the same witnesses, (it being the usual mode of procuring the attendance of witnesses in the court from which they issued,) and served the same as required, he is entitled to his fees for both services, on their being allowed and certified by the district judge. Marshals have no control over the practice of the courts, nor over the kind of process which they may issue; they are simply bound, as officers of the courts, to execute the process issued to them. In a matter of general and established practice, the regular taxation of the costs, and their allowance in due form by district judges, are binding and conclusive upon the accounting officers. ATTORNEY GENERAL'S OFFICE, SIR: I had the honor to receive your letter of the 7th instant, enclosing that of the First Comptroller of the Treasury, dated the same day, relative to the case of Mr. Waddell, the late marshal of the southern district of New York, and requesting my opinion on the points of law embraced in the letter of the Comptroller. I must be excused for noticing the imperfect manner in which the facts submitted to my consideration are stated, and the want of any distinct question on which my reply is expected. Although the legality of the marshal's proceeding is doubted, and the correctness of the allowance of the district judge is questioned, yet the statement of the Comptroller does not exhibit distinctly whether the proceedings of the marshal were in pursuance of distinct and separate process, nor the nature of the process which he served, the particular costs which were taxed, the mode of taxation, or the nature and extent of the allowance by the district judge. I am left, therefore, to infer the necessary facts and circumstances from the general statement, and I understand them to be these: The marshal of the southern district of New York received, in due course of law, process directing him to summon witnesses, and also a writ of subpoena, in addition to the summons, and distinct therefrom. This double process I understand to be the usual mode of proceeding to secure the attendance of witnesses in the court from which it issued, and that the costs thereof (having been duly taxed as such by the court) were allowed and certified by the judge. Upon this state of the facts, my opinion is asked, whether the marshal is entitled to costs, both for summoning the witness and serving the writ of subpœna; and whether the accounting officers are bound to credit him with them on their being allowed and certified by the district judge? If such are the facts, and if these are the questions submitted to me, I consider each as having been answered in the affirmative in the decision of my predecessor of the 20th of March, 1838, referred to by the Comptroller; and in that decision I concur. Although it may be that the double process, which appears to exist in the practice referred to, might be well dispensed with, yet that is a matter resting with the court, which the marshal has no authority whatever to control; and I conceive that he is bound, as the officer of the court from which it issues, to execute it when it comes to his hands. I am also of opinion that, in a matter of general and established practice, (such as I understand this to be,) the regular taxation of the costs, and their allowance in due form by the district judge, are clearly within his authority, and binding on the accounting officers. To the SECRETARY OF THE TREASURY. H. D. GILPIN. RIGHT OF ENLISTED SOLDIERS TO BRING ACTIONS FOR ASSAULTS. The laws of the United States do not prohibit persons enlisted in the military service of the United States from bringing actions to recover damages, in State courts, for assaults and batteries committed on them by non-commissioned officers within the limits of a fort. SIR: I had the honor to receive your letter of the 24th of January, enclosing the report of Major Gardner, dated 21st December, and asking my opinion on the questions of law arising out of the facts stated in that report. The questions are, whether there is anything in the laws of the United States to prevent a person enlisted in the military service of the United States from bringing an action to recover damages in the proper tribunal of the State of Michigan, for an assault and battery which has been committed on him in a personal quarrel by a non commissioned officer within the limits of Fort Gratiot? And, also, whether the provision of the act of Congress of the 11th of January, 1812, which prohibits the arrest of an enlisted soldier for a debt incurred subsequent to his enlistment, is applicable to an action so brought to recover damages for a personal injury? In reply, I have to say that, in my opinion, both questions must be answered in the negative. The report of Major Gardner is herewith returned. To the SECRETARY OF WAR. H. D. GILPIN. SCRIP FOR VIRGINIA LAND WARRANTS. Scrip may be issued on a Virginia land warrant dated subsequent to September 1, 1835, in cases where it shall appear that such warrant is not an original one, but was only issued in place of one issued improvidently to wrong heirs prior to September 1, 1835, and cancelled by Virginia, as it is in the nature of an exchange warrant, and may be treated as if issued within the time provided by law. ATTORNEY GENERAL'S OFFICE, SIR: I had the honor to receive your communication addressed to my predecessor, dated November 18, 1839, in which you inquire whether the second section of the act of March 3, 1835, appropriating land to satisfy Virginia land-warrants, justifies the issue of scrip on a warrant dated "October 26, 1839, and offered in the place of another, cancelled by Virginia, which had been improvidently issued to wrong heirs," as certified by the register of Virginia; which warrant had been filed and estimated for in the General Land Office prior to the 1st day of September, 1835. The act of March 3, 1835, provides "that no scrip shall be issued until the 1st of September, 1835, and that warrants shall be received in the General Land Office until that day; and immediately thereafter, if the amount filed shall exceed six hundred and fifty thousand acres, the Commissioner of the General Land Office shall apportion the said six hundred and fifty thousand acres of land among the warrants which may be then on file, in full satisfaction thereof." It is plain that, under this law, the Commissioner of the General Land Office had no authority to apportion land in satisfaction of a warrant issued after the 1st day of September, 1835; but where an apportionment had been made, pursuant to this provision, upon a warrant issued previous to the 1st of September, 1835, in favor of the heirs of a person who was legally entitled thereto; and it subsequently appeared to the satisfaction, and by the certificate, of the authorities empowered to decide thereon and to issue the warrant, that the same had been improvidently issued to wrong heirs; both reason and justice, as well as the policy of the law, require that the apportionment made on the warrant should be no farther avoided than to substitute the persons ascertained by the proper authorities to be the right heirs, for the wrong ones, to whom the warrant had improvi dently issued. Although, therefore, a warrant dated on the 20th of October, 1839, would not be a proper legal basis for an issue of scrip under the act of Congress referred to, if it were to be considered as an original warrant; yet my opinion is, that when such warrant so dated is merely in the nature of an exchange warrant, and is so certified by the proper authority to the Commissioner of the General Land Office, and the original one cancelled solely for such cause, the Commissioner should issue scrip thereon in the same manner as if it had been filed before the 1st day of September, 1835, to the extent and in lieu of the cancelled warrant. To the SECRETARY OF THE TREASURY. H. D. GILPIN. THE PRESIDENT AND ACCOUNTING OFFICERS IN THE CASE OF OTIS. The President cannot lawfully express any opinion respecting the claim of William Otis until the accounting officers shall have passed upon and settled all the items of the account. For him to do so, would be inconsistent with the act of Congress, and at variance with the estab lished system of auditing and settling accounts at the treasury. ATTORNEY GENERAL'S OFFICE, March 16, 1840. THE President, on submitting to the Attorney General the papers from the accounting officers relative to the case of William Otis, late collector of the customs for the district of Barnstable, in the State of Massachu setts, suggested the doubt whether the question referred for his decision. was within the intent of the proviso of the act of the 2d of March, 1829. On examining the papers, I am of opinion that it is not. The act of Congress, after directing the "proper accounting officers of the treasury" to audit and settle the claims of Mr. Otis upon principles of justice and equity, contains a proviso, that before the sum which they shall decide to be due on those principles shall be paid, their decision must receive the approval of the President. The papers now submitted to the President do not exhibit such a decision. On the contrary, it is evident that the account has not been settled; but that a difference exists between the First Comptroller and the First Auditor as to the propriety of their allowing a certain item of claim in the settlement; and this prevented the decision by them which the act of Congress contemplates. It appears to me, therefore, to be not only inconsistent with the intentions of this particular act for the President to express an opinion, at this stage, on the propriety of allowing or disallowing the item in question, but also at variance with the established system of auditing and settling accounts at the treasury. It is, therefore, respectfully submitted whether it would not be proper to refer the documents again to the First Comptroller, with these views, in order that a final decision on all the items of the account may be made before the sanction and approval of the President are given. H. D. GILPIN. To the PRESIDENT OF THE UNITED STATES. BOUNDARY BETWEEN LANDS OF CHARLES MORGAN AND POINT COUPEE. The report of the land officers of the 20th December, 1817, and the confirmatory act of Congress of the 11th of May, 1820, ought to be regarded as confirming the title of Morgan to the full extent of his grant issued by Governor Galvez on the 24th of January, 1777. ATTORNEY GENERAL'S OFFICE, SIR: I had the honor to receive your letter of the 8th of February, enclosing that of the Commissioner of the General Land Office, dated 6th of February, relative to the disputed boundary between the lands claimed by Charles Morgan and the inhabitants of the parish of Point Coupée. In answer to the first inquiry, which relates to the boundary of the tract derived by Mr. Morgan under the Spanish grant issued by Governor Galvez on the 24th of January, 1777, I have to say, that, in my opinion, the report of the land officers of the 20th December, 1817, and the confirma |