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But if such third person have any notice that the draft was issued for public purposes, and in.
trusted to an individual to present at the bank and receive the money thereon for the army, and had lost it by gambling, or some similar misconduct, such notice defeats his claim upon the government.
OFFICE OF THE ATTORNEY GENERAL,
January 18, 1836. Sir: It appears, from the papers accompanying your letter of the 16th instant, that, on the 2d of September, 1834, two warrants were drawn in due form by the Secretary of the Treasury on the Treasurer of the United States—the one requiring him to pay to Lieutenant R. D. C. Collins, assistant quartermaster at Fort Gibson, Arkansas, or order, the sum of $1,500; and the other requiring him to pay the same officer, or order, the sum of $1,000. At the foot of these warrants, drafts were drawn by the Treasurer on the cashier of the Union Bank of Louisiana, at New Orleans; each directing him to pay “ the above warrant agreeably to its tenor."
These warrants and drafts, after having come to the hands of Lieuten. ant Collins, were each of them endorsed by him in blank, in the following manner: “R. D. C. Collins, lieutenant, assistant quartermaster;" and thereupon delivered by him to Lieutenant Johnson, also an assistant quartermaster, for the purpose of being taken by him to the city of New Orleans, and there collected for the public service, with other similar warrants and drafts payable to his own order. Johnson, on his journey, fell among gamblers, who won from him about $12,000 in public warrants and drafts, including, among others, the two above described. Information of this fact being received by the quartermaster's department, pay. ment of the drafts in question was stopped at the bank. L. C. Morrill, of Arkansas, who is now the holder of the two drafts above mentioned, and who alleges that he received them “in a fair business transaction, and paid the full amount thereof," having caused them to be presented at the bank, and not receiving payment thereof, now applies therefor to the department; and in this state of facts, you ask whether, in my opinion, the United States are liable for the paymerit of these drafts?
Instead of making any positive reply to this question, (which, for the want of full information in regard to the usual manner of transmitting such drafts, and more especially as to the time when, and the circumstances under which, the drafts in question were received by Mr. Morrill, I cannot now give,) I will state the general principles of law by which, as I suppose, cases of this sort must be governed, leaving it to the department to apply them to the facts of this case, when they shall come to be sufficiently ascertained.
The drafts being payable " agreeably to the tenor" of the warrants to which they were subjoined, which warrants were payable to order, must, as I conceive, be regarded in the same light as ordinary checks on a bank payable to order, and negotiable by endorsement merely; unless, by the general practice of the treasury, and of the deposite banks, some special formality is required for their negotiation. I have no reason to suppose that any such formality is required; and if not, then the endorsement of Collins, the payee, would have been sufficient to authorize the payment to Johnson, for the use of the United States; and it would also have been
sufficient to transfer the title in the drafts to any third person receiving the same from him in good faith and for a valuable consideration.
The gamblers to whom the drafts were passed by Johnson could not recover the amount, because they received them on an illegal consideration, and from a person who, as they must have known, had no authority to pass them away, except for the public service.
But a third person, who may have received these drafts fairly, and on good consideration, without notice of the misconduct of Johnson, or of the illegality of the transfer, will, if the endorsement was in the usual and proper form, be entitled to demand the amount of them. In such a case, the law prefers that, of two innocent persons, the maker of the draft, who, by his own negligence or undue confidence in the payee, enabled him to put the draft afloat, should sustain the loss, rather than the innocent purchaser.
It is only necessary to add, in regard to notice, that any circumstance which is sufficient to put a party on inquiry, or to excite suspicion in the mind of a person of ordinary care, as to the validity of the endorsement, will in law be constructive notice, and sufficient to defeat the title of the holder. Whether anything of the kind exists in this case, does not appear from any of the documents before me; but I should think it very proper to look narrowly into the matter before payment is directed to be made. I am, sir, &c., &c.,
B. F. BUTLER. To the SECRETARY OF WAR.
THE THREE POTTAWATOMIE TREATIES.
The three treaties of 1832 with the Pottawatomie Indians may be considered as forming one
transaction; and that, except where special provision is otherwise made, the lands agreed by any one of them to be granted by the United States to individuals may be located within the limits of the cessions made by any one of the three, provided the party entitled to the grant assents thereto, and the President so directs.
ATTORNEY GENERAL'S OFFICE,
January 26, 1836. Sir: In your communication of the 19th ultimo, after calling my attention to the three several treaties made with the Potlawatomie Indians, on the 20th, the 26th, and 27th of October, 1832, and stating the circumstances which led to so many separate instruments, you request my opinion on the question, "Whether the terms of the third article of the treaty of October 27, (a large portion of the parties to which are also parties to the treaty of October 26,) require that the lands it grants to individuals shall be located within the limits of the cession made therein, and forbid their location within the limits of the cession by the treaty of October 26.”
Under the circumstances stated in your letter, and appearing on the face of the treaties themselves, I think they may all be considered as forming one transaction; and that, except where special provision is otherwise made, the lands agreed by any one of them to be granted by the United States to individuals, may be located within the limits of the cessions made by any of the three, provided the party entitleů to the grant assents there.
to, and the President of the United States so directs. With these qualifications, I am of opinion that your question may be answered in the negative. I have the honor to be, very respectfully, your obedient servant,
B. F. BUTLER. Hon. LEWIS Cass,
Secretary of War.
A widow keeping house, and having children or other persons residing with her, is the head
of a family, within the meaning of the fifth article of the treaty: If her children, or other persons residing with her, however, are provided for in the sixth or eighth articles, they cannot be included in the family enumeration. Widows keeping house without children or other persons residing with them, are, if they
own slaves, entitled to the section, or half section, according to the number of their slaves, given by the fifth article.
ATTORNEY GENERAL'S OFFICE,
February 5, 1836. Sir: I have examined the various provisions of the treaty with the Chickasaws of May 24, 1834, referred to in your letter of the 30th ultimo, for the purpose of replying to the question therein proposed. .
After comparing the several parts of the treaty with each other, and considering the general design of its provisions, I am of opinion:
1. That a widow keeping house, and having children or other persons residing with her, is the head of a family, within the meaning of the fifth article.
2. That if the children or other persons so residing with such widow are provided for under the sixth or eighth articles, they cannot be included in the family enumeration; and, consequently, that a widow keeping house, without children or other persons being with her, not provided for in other articles, except slaves, is not embraced by that part of the fifth article which gives to heads of families the four, three, or two sections, according as the number of such families consists of ten and upwards, of five or upwards, or of less than five.
3. But that a widow keeping house under the circumstances last men. tioned, by being the head of a family, is notwithstanding entitled, if she own slaves, to the section or half section, according to the number of her slaves, given by the fifth article. I have the honor to be, very respectfully, your obedient servant,
B. F. BUTLER, Hon. LEWIS Cass,
Secretary of War.
MONETARY CHARACTER OF VIRGINIA LAND SCRIP.
Virginia land scrip is so far representative of money as to be subject to the same equitable
deductions in case of indebtedness to or frauds committed upon the government as may be made in the case of a sum of money from the government to one of its debtors.
ATTORNEY GENERAL'S OFFICE,
February 9, 1936. Sir: It appears, from your communication of the 12th ultimo, that Holman Rice, being entitled to a Virginia land warrant, covenanted with T. Triplett to allow him one-third of what scrip he might obtain, for his services in procuring it; that T. Triplett employed John S. Barbour, esq., to assist him, and assigned to him 400 acres of the amount obtained for H. Rice, and received a warrant for Rice for the residue, amounting to 3,600 acres, which he (Triplett) filed in the General Land Office; and that the proportion to which Triplett (under agreement with Rice) is entitled, amounts to 933} acres; that Triplett, on forged papers, had re. ceived from the department $13,422 82; of which forgery he was convicted at May term, 1835, in the district court of Kentucky; that suits for recovery of the money are now pending; and that there is no reason to expect that any property can be found, out of which the amount he has illegally obtained can be realized.
Under these circumstances, you inquire whether the scrip, to which Triplett is entitled in this case, can be deducted for the benefit of the United States.
It also appears that three powers of attorney from H. Rice are presented; in respect to which you ask whether the latter one revokes the others, and authorizes the department to deliver the scrip belonging to Rice to Mr. Todd, the attorney therein named.
The provisions of the act of Congress under which the scrip in question issued, the form of the scrip, and the uses to which it may be applied in the purchase of public lands, authorize us to regard it as a sort of representative of money; and I think it, therefore, subject to the same equitable deductions as would be made in the case of a sum of money due from the government to one of its debtors. Triplett, so far as the 933 acres are concerned, is the real owner of the scrip; and I am accordingly of opinion that your first question must be answered in the affirmative.
The power of attorney to Triplett, dated in August, 1832, and the power to Mr. Sevier, dated in May, 1834, were both clearly revocable at the pleasure of Rice, except as to the rights acquired by Triplett under his contract; and I am accordingly of opinion that the power to Mr. Todd, dated in June, 1834, revoked the former powers, and authorizes the delivery to him of the scrip belonging to Rice. I have the honor to be, very respectfully, your obedient servant,
B. F. BUTLER. Hon. Levi WOODBURY,
Secretary of the Treasury.
PENSIONS TO WIDOWS.
Pensions to widows must be applied for during widowhood ; if they neglect to apply for them
before their marriage, they are concluded.
OFFICE OF THE ATTORNEY GENERAL,
February 9, 1836. Sır: In your letter of the 26th ultimo, you state the following case for my opinion:
« During the last war with England, an individual was killed on board of a private armed vessel of the United States in an action with a British ship. His widow did not apply for a pension. She married again; but the second husband, during her life, did not prefer the claim. After her death, he demanded the pension from the date of the first husband's death to the time of her second marriage. The woman had no children.”
On this case, you inquire whether the pension shall be paid ; and, if so, who is the proper person to receive it?
In my opinion, it is very evident, from the terms of the law, that the pension was intended exclusively for the personal benefit of the widow during her widowhood; and if she neglects to apply for it before her remarriage, I think it cannot afterwards be claimed, either by her, or by her husband in the event of his surviving her. I am, sir, &c., &c.,
B. F. BUTLER. To the SECRETARY OF THE Navy.
WHAT OFFICERS NON-RESIDENT OF VIRGINIA ENTITLED TO HALF-PAY,
Field-officers, captains, and subalterns, who commanded in the battalions of Virginia on the
continental establishment, or who served in the battalions raised for the immediate defence of the State, or of the United States, and all such officers as became supernumerary on the reduction of any of said battalions, and who again entered the service, when required, in the same or any higher rank, and continued therein until the end of the war, were entitled
to half-pay under the laws of that State, although not residents of Virginia. So, also, were the naval officers of the like rank.
ATTORNEY GENERAL'S OFFICE,
February 9, 1836. Sır: In your communication of the 8th of December last, you inquire whether, in my opinion, any officers in the land service, not citizens of Virginia, were entitled to half-pay under the laws of that State; and you also put to me the like question in regard to the naval service.
I have looked into the statutes of Virginia for the purpose of replying to your question.
The statute of May, 1779, ch. 6, (10 Hening's Stat. at Large, p. 25,) on which the first question arises, provides that all general officers of the army, being citizens of this Commonwealth, and all field-officers, captains, and subalterns commanding, or who shall command, in the battalions of this Commonwealth, on continental establishment, or serving in the battalions raised for the immediate defence of this State, or for the defence of the United States; and all chaplains, physicians, surgeons, and surgeons' mates, being citizens of this Commonwealth, and not being in the service of Georgia or any other State, (provided Congress do not make some tan