ted States, and particularly the consul who is also an agent of claims at Paris. In reply, I have to state that I am aware of no law which confers on consuls the general power of administering oaths, though they are authorized to authenticate depositions made in foreign countries. therefore, of opinion that the oath should not be administered by the consul, but by a competent magistrate of the country where it is taken; and that the deposition so made should be verified by the official certificate or authentication of the consul. The Commissioner of Patents also inquires whether the provision of the act of the 4th of July, 1836, above referred to, is "sufficiently complied with in England, by a solemn declaration" pursuant to the act of 6 William IV, entitled "An act to repeal an act of the present session of Parliament, entitled 'An act for the more effectual abolition of oaths and affirmations taken and made in the various departments of the state, and to substitute declarations in lieu thereof, and for the more entire suppres sion of voluntary and extrajudicial oaths and affidavits;' and to make other provisions for the abolition of unnecessary oaths." I have not seen the British statute here referred to, but presume, from its title, that it substi tutes, in certain cases in England, a declaration for the oath or affirmation previously required by the laws of that country. I am of opinion that this change cannot sanction any deviation from the requisitions of the act of Congress above referred to, and that the question proposed must be answered in the negative. To the SECRETARY OF WAR. H. D. GILPIN. PAYMENTS DIRECTED BY CONGRESS-TO WHOM TO BE MADE. Payments directed by Congress to be made to M. and T. should be made by the Secretary of the Treasury to them or their constituted attorney, notwithstanding the interposition of claims by third persons grounded on assignments, insolvent or other proceedings, anterior to the pas sage of the act directing the payment. Accounting officers cannot, in the innumerable cases in which Congress directs specific sums to be paid to individuals, examine and settle previously existing claims and credits against such individuals. ATTORNEY GENERAL'S OFFICE, May 13, 1940. SIR: I had the honor to receive your letter of the 7th instant, enclosing a report of the First Auditor, and certain papers relative to the payment of $2,757 23 to Robert Milnor and John Thompson, as directed by the act of Congress passed on the 2d instant; and inquiring whether the money should be paid to the persons named in the act, or the portion of Robert Milnor to his trustee. It appears that Robert Milnor and John Thompson, who were gaugers in the custom-house at Philadelphia, jointly performed, after the passage of the act of 4th of July, 1836, certain services in regauging wines that were in store, which did not form any necessary part of their official duty, and for which no compensation was provided by law or received by them. For these services they applied in February, 1838, to Congress, for compensa tion; and the act of 2d of March, 1840, was passed for the purpose of giving it. That act directs the Secretary of the Treasury to pay Robert Milnor and John Thompson the sum above mentioned, out of any money in the treasury not otherwise appropriated. Immediately on the passage of the act, G. W. Metz, as trustee of Robert Milnor, gave notice in writing to the First Auditor, that Mr. Milnor had made an assignment to him of his real and personal estate, and that, as his trustee, he claimed to receive the money to be paid him under the act. It appears, by a certified copy from the records of the court of common pleas of Philadelphia, that Mr. Milnor had applied on the 24th of December, 1838, for the benefit of the insolvent laws; that on the 11th of January, 1839, he had assigned all his property to Mr. Metz, as trustee, for the benefit of his creditors; and that he stated, among the property so assigned, "a claim on the government of the United States for about $3,774 50;" but no further statement is given of the nature of the claim, nor is there any evidence to show that it was his joint interest in the compensation above mentioned. At the same time, Robert Milnor and John Thompson applied to the Treasury Department, through the Hon. David Petrikin, of the House of Repre sentatives, as their joint attorney regularly constituted, for the payment of the above sum in pursuance of the act of Congress. In this application he denied the authority of the department to appropriate the money otherwise than as directed by the act of Congress, or to recognise a claim derived under an assignment made previously to its passage. He also alleged that the claim so assigned was a different one from that provided for by the act; and that the assigned claim was one made by Robert Milnor alone, and not jointly; and such a claim was in fact made previous to the date of the assignment, and is still pending before Congress. It also appears that the joint claim for which the present act provides was prosecuted solely by Milnor and Thompson, in their own rights; that the trustee made no application to Congress, or to any branch of the government, for the payment to him of Milnor's portion of the joint claim; and that he took no interest therein, and asserted no right thereto, until after the passage of the law by both houses. It also appears that Mr. Metz has received no transfer or assignment of the sum appropriated, and no authority whatever to act on behalf of the persons named in the law, since its passage, but that such transfer and authority are expressly denied and withheld. In reply to your inquiry, I have the honor to state that, in my opinion, there is no authority in the Treasury Department to make payment, except in accordance with the explicit directions of the act of Congress. Any other course would necessarily involve the department in the investigation of facts, and an examination of legal rights under the local statutes of Pennsylvania; in regard to which there appears to be a diversity of opinion between the parties, and which ought to be left to the settlement of the proper judicial tribunal. It would also give to the language of the act a meaning different from its plain import, which was to confer, at the time of its passage, on the persons actually named, the gratuity to which they had no legal claim. For the accounting officers to undertake, in the innumerable cases in which Congress directs specific sums to be paid to individuals, to examine and settle previously existing claims of credits against such individuals, instead of pursuing the plain directions of the act, would have the effect of interfering with the legislation of Congress in a manner not warranted, in my opinion, by any existing law. Nor does it interfere in any way with the legal rights of such claimants. They can look to the fund, in whose hands soever it may come by virtue of the act of Congress; it is held subject to their legal rights; and if they can establish the existence of these, the sum can be recovered, with more certainty of justice being done to all parties in interest, than by means of an extrajudicial decision of the Treasury Department, at variance with the language and apparent intention of an act of Congress. I am, therefore, of opinion that the Treasury Department is not authorized to pay the sum appropriated to any other person than those directed by the act of Congress-namely, Robert Milnor and John Thompson, or their duly constituted attorney. In this case, however, as in other similar ones, on which the opinions of my predecessors have been given, it is proper to observe, that where an equitable claim is interposed, which the department may regard as entitled to consideration, notice should be given to the claimant of the time when payment is to be made, so that he may not be precluded from the opportunity, if he desire it, to sustain his right by a judicial decision. To the SECRETARY OF THE TREASURY. H. D. GILPIN. COMPENSATION OF MARSHALS AND CERTIFICATES OF JUDGES. Where it is the settled practice of the court to procure the attendance of witnesses by the service both of the process of summons and subpoena, and an order issues to the marshal to summon witnesses, that officer is entitled to an allowance of fifty cents for performing the order, and the stated compensation for serving the summons and subpoena. He cannot disregard the orders or process issued by the court, even though they are superfluous; but must execute such as shall be issued to him in the ordinary practice, and for which he is entitled to the prescribed fees at the hands of the government. The taxation of the court, and the allowance and certificate of the judge, are conclusive upon the accounting officers when the service or purpose is enumerated in the act of Congress, and the sum allowed therefor is not exceeded. The marshal cannot be allowed more for the service of a summons, where a subrœna and summons shall have been issued to him to obtain the attendance of a single witness, than the sum prescribed for summoning a single witness. ATTORNEY GENERAL'S OFFICE, SIR: I had the honor to receive your letter of the 26th of February, enclosing a communication from the First Comptroller, and requesting an opinion on certain points connected with the compensation of the marshal of the southern district of New York for summoning witnesses. These inquiries involve the proper construction of certain provisions in two acts of Congress. The second section of the act of 8th May, 1792, provides that the forms of writs, executions, and other processes, except their style, and the forms and modes of proceeding in suits, in those of common law, shall be the same in each State, respectively, as were used in the year 1789 in the supreme courts thereof; subject, however, to such alterations as the courts of the United States, respectively, shall, in their discretion, deem expedient, or to such regulations as the Supreme Court of the United States shall think proper, from time to time, by rule, to prescribe to any circuit or district court concerning the same. The first section of the act of 28th February, 1799, provides that the compensation to the marshals of the several districts of the United States, for "the service of any writ, warrant, attachment, or process, issuing out of any court of the United States, shall be two dollars;" and also that their compensation for "actually summoning a witness shall be fifty cents." It appears that it is an established mode of proceeding in suits in the district court of the United States for the southern district of New York to issue out of the court a writ of subpoena to be served by the marshal, and also a summons, in addition thereto, and distinct therefrom. This double process, I understand, is the usual and established mode of proceeding adopted in all suits depending in that court, and distinctly recognised and allowed as such by the district judge. In your letter to my predecessor, Mr. Butler, dated 12th September, 1837, the inquiry was made, whether or not this writ of subpoena was included within the clause of the act of 8th May, 1792, which allows the marshal two dollars for the service of each writ, warrant, attachment, or process; and, also, whether or not the accounting officers were bound to credit the marshal with the sum allowed therefor, upon the allowance and certificate of the district judge, made in accordance with the provisions of the fourth section of the same act? The opinion of Mr. Butlerthat both inquiries should be answered in the affirmative-having been deliberately expressed, and heretofore communicated, I did not consider it necessary to re-examine that question, or to do more than express my assent thereto; which was done in my letter of the 14th of February last. In reply to the additional inquiries on the same subject, which are now made by the Comptroller in his communication enclosed in your letter of the 26th February, I have to express the following opinion: 1. The additional and distinct order to the marshal, directing the actual summons of the witness, is not included within the provision making compensation for the service of the writ of subpoena; it being specially provided for by the specific allowance of fifty cents for performing that order. 2. The marshal may be rightfully allowed his compensation for the due service and return of the writ of subpœna, and, also, his compensation for actually summoning the witness; it being, of course, understood that the double process comes to his hands, and the execution of each is required of him under the established practice of the court. 3. If this double process is issued under the established and recognised practice of a court of the United States, it is legal process, which the marshal is not at liberty to disregard. Both orders must be obeyed by him; his acts must be done, and his returns made in compliance with each; and the accounting officers are bound to recognise and allow the prescribed compensation for each, even though the service of the subpoena, or the summous, separately, might be sufficient to secure the attendance of the witness. 4. The taxation of the court, and the allowance and certificate of the judge, are conclusive upon the accounting officers when the service or purpose is enumerated in the act of Congress, and the sum allowed therefor is not exceeded; nor can the allowance be considered "as palpably excessive," if it is in accordance with the rules of court and established modes of proceeding, even though it be admitted that a part of the service, and, consequently, of the compensation, might be usefully dispensed with. 5. If a writ of subpoena and summons be directed to the marshal in order to obtain the attendance of a single witness, and both be duly executed and returned, he cannot claim to be allowed more for the service of the summons than the sum prescribed for actually summoning a single witness. In expressing these opinions, in addition to those heretofore given by Mr. Butler on the same questions, arising out of the communication of the Comptroller, I beg to observe, that I entertain strong doubts whether Congress contemplated the issuing or service of a writ of subpoena, in addition to the summons of a witness, when the act of 28th February, 1799, was passed; and I am also at a loss to perceive the necessity of a double process for securing the attendance of a witness, which adds so much to the costs that parties must incur. But, notwithstanding these views, I do not think that the marshal is at liberty to disobey or neglect to execute any lawful process which, as the executive officer of the court, he may be required, under its rules or established modes of proceeding, to perform; or that he should be deprived of compensation for such services, on the ground that they are unnecessary or superfluous. Such a doctrine would be, in fact, to make the practice of the courts of justice dependent on the accounting officers. The proper mode, in my opinion, of providing a remedy, is by the action of the legislature, or the courts themselves; nor do I see any difficulty, as regards this particular subject, in calling it specially to the notice of the court, who are fully authorized to make such alterations in their modes of proceeding as they may deem proper. Should you think it expedient, the attorney of the United States might be directed to take this course; and there can be little doubt that, unless there is good reason to the contrary, the court would make such change as might be necessary to save the parties from any useless accumulation of costs. To the SECRETARY OF THE TREASURY. H. D. GILPIN. ERRONEOUS PAYMENT FOR PRINTING LAND PATENTS. Where the contractor for parchments for land patents delivered a portion of them in printed form and received payment therefor, augmented by the price of the printing-DECIDED, that the amount thus erroneously paid may be deducted from other sums yet due him. The contractors for the printing of parchments cannot be paid for such printing; nor are they entitled to the amount thus overpaid to the contractor for parchment. ATTORNEY GENERAL'S OFFICE, SIR: I had the honor to receive your letter of the 7th instant, in which you state that "John T. Sullivan contracted to deliver to the General Land Office one hundred thousand pieces of parchment, for land patents; and that Blair and Rives contracted to print blank patents on that number of parchments; that Mr. Sullivan has delivered a portion of the parchments in the printed form, instead of in blank, as his contract required; and that for part of the number thus delivered, he has been paid by the Com |