of the 15th of May, 1820. The repeated re-enactment of this provision is altogether inconsistent with the idea of its being a general or permanent provision; and shows that, in the judgment of the legislature, it had expired with the expiration of the acts in which it was contained. Upon the whole, I entertain, for the reasons above assigned, such strong doubts as to the accuracy of the interpretation heretofore given to the law in question, and so decided an opinion as to the injustice of the law itself, if the construction given to it is the correct one, that I cannot but hope that Congress may even now interfere in these cases, and carry back the pensions to the time when the disabled party ceased to receive the pay and emoluments of the service. 2 Whether, under the peculiar circumstances in which the applicant was placed, the law was applicable to his case?" The circumstances here referred to are the following: In May, 1820, a large balance stood to the debit of General Ripley, in the accounting offices, for arrears of money received by him for disbursement during the war of 1812. Suits were subsequently brought against him to recover such balance; he resisted the recovery on the ground that he was not indebted to the United States, but, on the contrary, that the United States were justly indebted to him; and, after various proceedings in the controversy, it was finally disposed of by a verdict in favor of the defendant, which closed the account at the treasury; and, according to the certificate of the jury, still left General Ripley a creditor of the United States to a large amount. Under these circuinstances, he contends that, if the law of 1820 applies to other than revolutionary cases, it ought not to affect him; because, as he alleges, he was at the time, and ever after, until the closing of his account by the verdict in his favor, disqualified by law from drawing his pension; and, being so disqualified, the limita tion contained in that act did not, and could not, run against him, until it ceased to exist. The disqualification on which this argument is founded did not, so far as I can discern, exist until the 3d of March, 1823, when a provision was first introduced into the act "making appropriations for the military service of the United States for the year 1823," (which act included an appropriation for invalid pensioners,) prohibiting the payment of any money thereby appropriated to any person for his compensation, "who is in arrears to the United States, until such person shall have accounted for, and paid into the treasury, all sums for which he may be liable," &c. This prohibition was for several years incorporated in the general and other appropriation bills; and, in 1828, was enacted as a permanent law, by the act to prevent defalcations on the part of disbursing agents of the government, and for other purposes," approved January 25, 1828. This inhibition, in my opinion, extends to the case of an invalid pensioner; and it must, therefore, be conceded that, from March, 1823, until the balance standing against General Ripley on the books of the treasury was extinguished, he was disqualified to draw his pension, even had it been previously allowed to him. It is also true, as a general rule, that statutes of limitation do not run against persons disqualified by infancy, interdiction, or any other cause, to enforce their claims; all such cases being usually excepted from the statutory har. But it does not appear to me either that the act of 1820 can with propriety be regarded as a limitation law; or, if such be its true character, that the case of General Ripley can be brought within the principle of the exceptions above stated. The statute does not attempt to prescribe the time within which the claim is to be preferred; nor did the disqualification under which General Ripley labored prevent him from making or establishing his claim. He might have preferred and established it; and, although no money could have been paid thereon until the balance standing against him was extinguished, yet, on the closing of his accounts, he would have been entitled to receive all that had accrued during the interval, and to be regularly paid thereafter. If then, the second section of the act of 1820 applies to this case, I must be considered as answering the present question in the negative. 3. Whether the rule which declares that the evidence is complete only when the papers are duly authenticated, and all objections to the claim cease, is conformable to the spirit of the law?" The accuracy of the law being thus called in question, I think it my duty to state my views on the subject, although the rule itself is in entire conformity to the second opinion of the Attorney General in the case of Colonel Johnson, dated the 19th of July, 1822, which opinion was the result of a very mature consideration; and although it has also been adopted in the President's regulation of the 18th of April, 1829. The first section of the act of the 15th of May, 1820, refers us to the act of the 10th of April, 1806; and whatever would complete the testimony under that act must certainly be sufficient. Now, the second section of the act of 1806 expressly prescribes the rules and regulations which are to be complied with in substantiating claims. They consist of certain proofs to be made by affidavits before the judge of the district, or one of the judges of the Territory in which the claimant resides, or before some person specially authorized by commission from said judge; and after the proofs have been duly submitted to the proper judge or commissioner, he is to "certify, in writing, his opinion of the credibility of the witnesses whose affidavits he shall take, in all those cases where it is said the proof shall be made by a credible witness or witnesses; and, also, that the examining physician or surgeon is reputable in his profession." The third section provides that the judge or commissioner shall transmit a list of such claims, accompanied by the evidence, affidavits, certificates, and proceedings had thereon, "noting particularly the day on which the testi mony was closed before him," to the Secretary of War, &c. And the fourth section of the same act of 1806 declares "that every pension, or increase thereof by virtue of this act, shall commence on the day when the claim. ant shall have completed his testimony before the authority proper to take the same." Under the act of 1806, it is therefore manifest that the date of the last affidavit, or last oral examination on oath, before the judge or commissioner, was the true date from which the pension was to com mence; and as this rule is referred to and adopted by the act of 1820, I do not see how any other formality, not required by the act "thereby revived and continued in force," can be made the test of the completing of the testimony "pursuant" to the act. If further evidence be necessary to authenticate the proceedings. the President, or the Secretary of W acting under his authority, may undoubtedly require it; and so far the President's regulation of the 18th of April, 1829, may be regarded as per fectly consistent with the act of 1820. But I am clearly of opinion that the rule referred to in the question I am considering, and the opinion on 1047 recognition has been since repeated by numerous acts of the Executive, several of which had taken place before the capture of the Pocket. On the assumption that the actors were aliens, the case is, therefore, fairly It brought within the principle above stated, and the charge of piracy cannot be sustained. I am, sir, &c., &c., To the PRESIDENT OF THE United States. B. F. BUTLER. RELIEF OF THE SUFFERERS BY FIRE IN NEW YORK. The persons referred to in the act of 19th March, 1836, for the relief of the sufferers by fire in the city of New York, before its modification by the amendatory act of the 5th of April, who, upon notice given by the collector, made returns of their losses, and tendered new bonds, which were accepted by the collector, are entitled to the full benefit of that act. But those whose bonds were proffered, but not executed, prior to the passage of the amendatory act, are not entitled to the benefit of the original law. ATTORNEY GENERAL'S OFFICE, June 17, 1836. SIR: I have had the honor to receive your letter of the 24th ultimo, proposing for my opinion several questions arising under the act of the 19th of March last, "for the relief of the sufferers by fire in the city of New York," and the act of the 5th of April last, amendatory thereof; to 4 each of which questions I shall now proceed to reply. 1. Are persons of the description referred to in the first-mentioned act E entitled to the full benefits, before its modification by the amendatory act of the 5th of April, who, upon notice given by the collector, made returns of their losses and tendered new bonds, for the extension of credit provided for in the act, which bonds were accepted by the collector prior to the passage of the last-mentioned act? This question, in my judgment, must be answered in the affirmative. Until the passage of the amendatory act, the collector was fully authorized to extend the benefits of the original law to all persons coming within the terms of that law and complying with its provisions; and I regard his acceptance of the new bond as a virtual cancelment of the former security, because he is expressly authorized and directed to give up or cancel all such prior bonds, upon the receipt of the new bonds described in the law. His omission to do this formal act cannot affect the rights or obligations of the parties. From the moment, therefore, when the new bond was received, the law was substantially complied with; the obligors by whom the new bond was executed became responsible to the United States, and the obligors in the former bond were entitled to be discharged. 2. You propose the like question in reference to cases where returns of losses were made, and the execution of new bonds proffered, but not executed, prior to the passage of the amendatory act, owing to the collector being desirous of having them prepared according to official forms. In these cases, I am of opinion that the parties are not entitled to the benefits proffered by the original law. I regard all the advantages held out by that law in the light of a mere gratuity, in respect to which no vested right can be acquired except by the actual acceptance of a new The opinion of the Attorney General dated the 9th of June, 1825, and transmitted on that day to the Secretary of the Navy, settles the first of these questions in the affirmative. In that case, as in the present, a person had lost his life during the late war, while in the line of his duty on board a private armed vessel. He left a widow and children under the age of sixteen. No application for a pension was preferred until 1825, before which time the widow had intermarried. After her remarriage, she applied for a pension on behalf of her children, (some of whom were under sixteen) and, also, for the portion of the pension between the death of her first husband and her second marriage. The Attorney General, in an elaborate opinion, in which he stated the provisions of the laws, and the practical construction which he understood they had received in the Navy Department, decided that the widow had a vested and perfect right to the pension during her widowhood, and that her right to receive it for that period was not affected by her subsequent marriage. The precise point now presented was not, indeed, submitted for decision in that case; but the principle laid down by the Attorney General, and the reasoning of his opinion, are equally applicable to the present claim, as you will perceive on referring to the opinion, which, I take for granted, may be found on the files of your department. Indeed, he puts, by way of illustration, the very case involved in your question, and speaks of it as having been settled by the practice of the department. “I understand," says the opinion, "that even where the widow has intermarried before she has made any application, or has died before she has made any application, the uniform practice of the department has been, not to consider the application too late for all that was due at the time of her intermarriage or death, the department having heretofore considered that as having been done which ought to have been done." proceeds to express his approbation of the practice as conformable to the spirit and design of the law. For a fuller exposition of the grounds en which the opinion of my predecessor was founded, I beg leave to refer you to the document itself. Your second question must be solved by applying to the present case the rules of law in regard to the right of the husband in the property of his wife, in force in the State where the parties resided at the time of his wife's death. By the law of England, the husband, if he survives his wife, is entitled to administer on her estate, and to recover all debts due to her at the time of marriage, and all her other outstanding choses in action, for his own use, subject only to his liability for debts contracted by her whilst a femme sole, to the extent of the assets received by him. This is the general rule in the American States; though in Maryland, and perhaps in some other States, the husband has been relieved from the necessity of taking out letters of administration. I am, sir, &c., &c., B. F. BUTLER. To the SECRETARY OF THE NAVY. is, as to the amount of compensation to which they are entitled. On looking at the commission of Lieutenant Poor, (whose case, as I understand, has given rise to the above question,) I perceive that, although it is dated the 15th of April, 1836, it expressly appoints him a lieutenant in the navy from the 22d of December, 1835; and this, I presume, is the general form. I have, therefore, no hesitation in saying that, in cases of this sort, the officer is justly entitled to the increased pay from the date to which the appointment is thus carried back, provided he was intermediately in the performance of duties which, though capable of being performed by the lower grade, were at the same time compatible with the higher grade. In other words, and applying the principle distinctly to the case of Lieutenant Poor: if that gentleman, from the 22d of December to the 15th of April, was in the performance of duties which were only appropriate to the grade of passed midshipman, I cannot think it either just or lawful to allow him the pay of a lieutenant; but if the duties performed by him were such as might have been lawfully assigned to a lieutenant, then I think it both just and legal to allow him the pay of that grade. I am, sir, &c., To the SECRETARY OF THE NAVY. B. F. BUTLER. PRE-EMPTIONS UNDER ACT OF MAY 29, 1830. Legal evidence from competent sources, (excluding the oaths of claimants and all interested parties,) is what is intended by the word "proof" contained in the act of the 29th May, 1830. The Commissioner may prescribe the mode and kind of proof-how and by whom it should be taken; but cannot prescribe anything as proof which is not such in fact, nor any rule as to its weight and force." Where it is intended to admit the oath of an interested party, it is generally provided for in express terms. Unsupported affidavits of settlers are not admissible as proof under the act. Competent proof is required; yet the Commissioner cannot properly require competent proof to be corroborated. An entry allowed by the register and receiver upon the affidavit of the interested party and only corroborated by facts within their knowledge, is only erroneous and voidable, not void as against the United States. Settlers or occupants, within the meaning of the law, are those who reside personally on the public land in question, or who occupy and use it. Settlements and occupancy cannot be effected by proxy. ATTORNEY GENERAL'S OFFICE, SIR: In your letter of the 16th ultimo, you enclosed a communication from the Commissioner of the General Land Office, presenting several questions growing out of the conflicting claims of Messrs. Adams and Lapsley under the pre-emption law of the 29th of May, 1830, and the acts amending and reviving the same, on which you request my opinion, and to which I shall now proceed to reply: "1. Is the affidavit of the interested claimant, unsupported by 'corroborative testimony' from any other source, or by any other evidence, legal and competent proof to establish a right of pre-emption, when received as satisfactory by the register and receiver?" In order to come to a correct decision of this question, we must first in |