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Postmasters cannot lawfully receive to be conveyed in the mail any packet weighing more than

three pounds in any case whatever, except such as are specially provided for in the act of the 19th December, 1821, and the joint resolution of the 13th of January, 1831.


December 13, 1836. Sır: I have had the honor to receive your letter of the 25th of July last, asking my opinion on the question discussed in the correspondence between the Secretary of State and yourself, in respect to the weight of packets which may be sent, under the frank of the executive departments, through the mails. The reasoning relied on in your communication to me, and especially so much of it as is founded on the joint resolution of the 13th of January, 1831, is, in my judgment, very nearly, if not quite, decisive of the point in controversy. And I have since met with another joint resolution, which shows, beyond all reasonable doubt, that the Congress of 1830 also regarded the prohibition contained in the 13th section as a universal prohibition.

The resolution to which I refer was approved on the 30th of April, 1830, and is in the following words:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That so much of the thirteenth section of the act of the third of March, one thousand eight hundred and twenty five, as restricts the weight of packages by mail, shall not apply to the transmission of papers relating to the fifth census or enumeration of the inhabitants of the United States."

These two resolutions must be regarded as a legislative exposition of the act of 1825; and as the subject is one that relates to the administration of the public business, in which no private right is concerned, that exposition may and ought to be followed. I am accordingly of opinion that postmasters cannot lawfully receive, to be conveyed in the mail, any packet weighing more than three pounds, in any case whatever, except such as are specially provided for in the act of the 19th of December, 1821, and the joint resolution of the 13th January, 1831. I am, sir, &c.,


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Unless there be some error in the specification arising from inadvertency, accident, or mistake,

and without any fraudulent or deceptive intention, the patentee cannot surrender a patent which includes several distinct improvements and take out several new ones.


December 15, 1836. Sır: In answer to the question proposed in the letter of the Commissioner of Patents, enclosed in your communication of the 31st of October last, and on which you have requested my opinion, I have the honor to reply, that, in my judgment, there is no sufficient reason for departing from the construction which was given to the corresponding part of the

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deliberately adopted by those officers, I think the courts may, with propriety, resort to contemporaneous documents on file in the proper department, for the purpose of ascertaining the intent of the grantors. If that be done in the present case, there will be no difficulty in ascertaining that the deed was intended to take effect in the manner above suggested. Assuming, then, that the grant is to be so understood, and the case will stand on precisely the same ground as if the patent, after reciting the facts, had granted the premises described therein "to Raphael Lesieur and his heirs, provided the said Raphael Lesieur be now living; but if the said Raphael Lesieur shall have died prior to the execution of these presents, then to the present legal representatives of the said Raphael Lesieur and their heirs."

Would such a grant have been valid and effectual to pass the estate according to the intent? I think it would; and if I had any doubts on the subject, I should be unwilling, with my present knowledge of the laws of Missouri, and especially after the high authority referred to by the Commissioner, and the usage which has so long obtained, to put them forth.

I will, however, take the liberty of adding a further suggestion. It is stated in one of the papers referred to me, that Rapheal Lesieur, the party originally entitled in this case, is yet living; and it is therefore claimed that the patent should be directly to him and his heirs, without the addition of the other words. Though I think his title will be the same if he receive the patent in its present form, as if it had been to him alone; yet I can see no particular necessity for the alternative form, when the party originally entitled is alive and capable of taking the estate. This form was first adopted to meet those cases in which the party originally entitled had died; and where that event has not occurred, it would seem to be proper that the patent should be made out to the grantee named in the certificate, without any alternative words.

I am, &c.,


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The grant of the reservation is the essence of this provision of the treaty, and the direction as

to the mamer in which the same shall be located ought not to be so construed as to defeat the grant.


May 9, 1836. Sir: I have the honor to acknowledge the receipt of your communication of the 7th instant, enclosing papers relative to the location of a reservation for D. W. Wall, under the Choctaw treaty of 1830, and inquiring whether, in my opinion, that location can be confirmed.

It appears, from the letter of Colonel Martin, the locating agent, that the location in this case had been conditionally made by him of a sixteenth sec. tion, subject to the final decision of your department. This course was adopted, because the agent had doubts as to the rights of a reservee, under the treaty, to locate on a sixteenth section. This doubt is met by my opin.

ion of the 31st of March last, in which it was held that these sections are subject to the claims of reservees under the treaty.,

From the letter of Mr. Lyon, also enclosed to me, it would seem that another question has arisen in this case.

The supplement to the Choctaw treaty grants to D. W. Wall, and to several other persons, all specially named, one section of land each,“to be located in entire sections, to include their present residence and improve. ment, with the exception of Molly Nail and Susan Colbert, who are authorized to locate theirs on any unimproved unoccupied land.” D. W. Wall, in point of fact, had no residence and improvement of his own, being at the time a minor, and residing with his father. Under these circumstances, I understand it is doubted whether the grant to him has not entirely failed. In the case of George W. Hawkins, arising under this treaty, I had occasion to examine a question somewhat similar in point of facts, and identical in the principle by which it was decided, I then held that the essence of the treaty provision on which the question arises con. sists in the grant of the reservation; and that the direction as to the manner in which the reservation is to be located, though important in itself, and proper to be observed so far as circumstances would permit, ought not to be so construed as to defeat the grant. Referring to that opinion, under date of the 19th March, 1834, for a fuller'exposition of the subject, I have only to add that, in my opinion, the grant has not failed, and that no valid objection is stated in the documents before me to the confirmation of the location. I am, sir, very respectfully, your obedient servant,

B. F. BUTLER. Hon. Lewis Cass,

Secretary of War.


Locations of sections, or parts of sections, should be made by taking whole, half, or quarter

sections, as the case may be, without breaking up the legal divisions or disturbing sectional

lines, In this case, the reservee is entitled to the half section on which his improvement is located,

and the whole of that chosen for the balance.


May 10, 1936. Sir: I have received and considered the case of Noah Wall, as stated in the papers enclosed in your communication of yesterday.

By the supplement to the Choctaw treaty, he is allowed a reservation of a section and a half of land, to include his then present residence and improvement, which were entirely within the south half of fractional section 35. Before any lands were sold in this neighborhood, the representative of Wall applied to the locating agent to locate this reservation on the south half of section 35, and the whole of section 2; which was provisionally done. But the agent, being of opinion that a different location might be made, afterwards sold section 2, and located Wall's reservation on fractional section 35, and on three quarter sections in section 36. The claimant objected to this change of location;' and, when section 2 was sola, gave notice to the purchaser that it was claimed as a part of Noah Wall's reservation. The locating agent states that, should it be decided that Wall was entitled to the whole of section 2 and the south half of 35, his report of the location can be changed in conformity with such decision.

According to the principles stated in opinions heretofore given in this office, locations of sections, and of half or quarter sections, are to be made by taking whole sections, or half or quarter sections, as the case may be, without breaking up the legal divisions or disturbing sectional lines; and when the reservation is to include the improvement of the reservee, the location is to be so made as to give to the reservee, as a whole section, the particular section in which his improvement, or the greater part of it, lies; whilst the part section, if he be entitled to any, is to be taken from some adjoining tract. This latter rule cannot be carried out in the present case, because section 35, in which the improvements are situated, is a fractional section of about — acres; and the last location made by the agent, though it takes the whole of section 35, will not give Wall one entire section and an entire half section, but a fractional section and three quarter sec. tions. The first location will, however, give him one entire section, viz: section 2; and a complete half section, viz: the south half of 35; adjoining each other, and including all his improvements: thus answering precisely the words of the treaty, and conforming to the spirit of former de. cisions. For these reasons, I am of opinion this was the location to which Wall was entitled. I have the honor to be, very respectfully, your obedient servant,

B. F. BUTLER. Hon. Lewis Cass, Secretary of War.


The risk of supplies purchased for the army follows the title.
The title of a quantity of pork contracted for by the proper officer, prepared and designated

by the vendors, and an order given upon the packers for it, is in the United States; and, it is be then destroyed, the loss must fall upon the government.


May 12, 1836. Sir: I have had the honor to receive your letter, with the documents enclosed, relative to the claim of Messrs. Hubbard & Co.

According to our law, the risk of goods purchased follows the title; and, consequently, if the title in the pork purchased by Lieutenant Drum, of Messrs. Hubbard & Co., had become vested in the United States prior to its destruction by fire, the government ought to bear the loss. The only point in the case is as to the delivery. It seems, by the concurring statements of both parties, that the agreement was complete, and that the pork was prepared and designated by the vendors; that on the morning of the 7th of October, Lieutenant Drum's sergeant, by his direction. called on the vendors, and received from them an order for the pork on the packers in whose possession it then was; that this order was duly delivered; and that the night after, but before the order had been presented, the pork was destroyed by fire. From the time when the order was received, the property was under the control of the purchaser; and

his omission to take it into his actual custody can make no difference. The delivery of the order was, therefore, in law, a sufficient delivery of the pork. The title was transferred to the United States, for whose benefit the contract was made; and they are bound to pay the price stipulated in the agreement. I am, sir, &c., &c.,



A quartermaster sergeant acting as a clerk in the office of the quartermaster of the marine

corps is entitled to the additional compensation of fifteen cents per day allowed by the act of March 2, 1819, and paid to the sergeant acting as clerk in the office of the Quartermaster General of the army.


May 13, 1836. Sir: I have had the honor to receive your letter of the 17th of March last relative to the claim of Quartermaster Sergeant Devlin to the addi. tional compensation of fifteen cents per day allowed by the act of the 2d of March, 1819, “ to regulate the pay of the army when enıployed on fatigue duty.”

After referring me to his statement, and other documents enclosed in your communication, you ask my opinion on the question, “Whether Quartermaster Sergeant Devlin, acting as a clerk in the office of the quartermaster of the marine corps, be entitled to the additional compensation of fifieen cents per day allowed by the act of 20 March, 1819, and paid to the sergeant acting as clerk in the office of the Quartermaster General of the army ?

The act of the 11th of July, 1798, treats the marine corps as a part of the army; and the 2d section expressly provides that, when serving on shore, the staff officers (including the quartermaster sergeant) shall be entitled to the same extra pay and emoluments which are allowed by law to officers acting in the same capacities in the army. The late act of the 30th of June, 1834, “ for the better regulation of the corps,” continues to non-commissioned officers, musicians, and privates, the same pay and allowances as they then received.

In the case of Sergeant Fleury, of the army, I gave it as my opinion that the continuous service of a non-commissioned officer of the army proper, as a clerk in one of the bureaus of the War Department, was to be deemed constant labor," within the legal interpretation of the act of the 2d of March, 1819, and in accordance with the practical construction which that act has received in the Quartermaster's Department, and some other branches of the service. If this opinion was well founded, it will necessarily follow that a non-commissioned officer of the marine corps, performing the like duties, must prima facie be entitled to the like allow


I perceive, however, that Sergeant Devlin has laid his claim before Congress at their present session, and that the Committee on Naval Affairs of the House of Representatives have reported against it; and, in the report, have dissented from the opinion in the case of Sergeant Fleury,

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