the executive government to pay an acknowledged defaulter his salary, because his accounts cannot be immediately stated, as the act of 1797 requires they should be, for the purposes of suit, or to drive the govern ment to a suit before it is prepared for carrying it on under that act. I admit that the point is not without difficulty, and it is as important as it is difficult. It would generally happen that the most notorious defaulters would profit most by the doctrine contended for. In the first place, defalcations are most apt to happen in long and complicated accounts, involving a great variety of transactions and the expenditure of large sums of money. Then such accounts, rendered still more obscure and perplexing by fraud or negligence, would inure to the benefit of the defaulter who created these difficulties. He would profit by his own wrong, under a false con struction of a statute, passed with a view of arresting or punishing that wrong as soon as possible. * On the whole, I am of opinion that the first or enacting part of the statute of 1828 requires the officers of the treasury to stop the pay of every officer who is evidently in arrears; that is, who does not account when the time of accounting is passed, but not otherwise; and that the proviso only guards against the possible abuse of this power by requiring the accounting officers to lose no time in reporting his account for suit, if he demands it. construe" forthwith" as equivalent to "without unnecessary delay." It means that there shall be no discretion to sue or not to sue on an account stated. As soon as the account is ready to be reported, it shall "forthwith" be reported; if not to be reported, it shall be got ready as soon as possible, consistent with the course of the accounting officers. There shall be no laches, no arbitrary postponement, on the part of the Comptroller and Auditor. I ought, perhaps, to add more expressly that no more is to be deducted from the pay of Lieutenant Lee than is necessary to make up the default ascertained. I have the honor to be, sir, your obedient servant, To the PRESIDENT. H. S. LEGARE. CLAIM OF ADMINISTRATOR TO LAND SCRIP. An administrator has no right to demand land scrip under the act of May 30, 1830. OFFICE OF THE ATTORNEY GENERAL, SIR: I have looked into the report of the Commissioner of the Land Office on an appeal taken by Mr. Murray to yourself, relating to the delivery of scrip to him, as agent of the administrator of the estate of Joseph Day. The single question submitted to me is, Has an administrator a right to demand land scrip under the act of May 30, 1830? This question you will find so fully answered by one of my predecessors, (Mr. Berrien,) that it were mere supererogation to do more than refer to his opinion. (Instructions, &c., vol. I, p. 63.) There is no pretence to say that an administrator can demand the scrip under this construction of.the law, and in such a case as that presented to me by the Commissioner's report. Furthermore, the administration law of Georgia has nothing to do with lands lying out of that State which are governed by the lex loci rei sita. On all grounds I concur in opinion with the Commissioner. I have the honor to be, sir, your obedient servant, Hon. WALTER Forward, H. S. LEGARE. Secretary of the Treasury. PATENTS FOR CHOCTAW RESERVATIONS-PRESIDENT'S APPROVAL, &c. The approval of the President to a sale of a Choctaw reservation is required only to contracts between the Indian reservees and their vendees. The patents ought to issue to the first vendees in trust for the equitable proprietors, or subsequent assignees, and bear on their face a declaration. OFFICE OF THE ATTORNEY GENERAL, May 25, 1842. SIR: In compliance with the request you did me the honor to make in your letter of the 7th instant, I have considered the statement of facts prepared by the Commissioner of Indian Affairs in the case of Charles Scott's reservation, under the treaty of Dancing Rabbit Creek with the tribe of Choctaws. The letter of the Commissioner seems to call for opinions on two distinct questions: 1st. Whether the President's approval of a sale of a Choctaw reservation is required to be given to the assignment made by the assignee or vendee of the reservee? 2d. Can a patent issue directly to the assignee of an assignee? To the former question, I answer, that the approval of the President is required only for the contract between the Indian reservee and his vendee. The object of the provision of the treaty was clearly only to protect the Indian, as one quasi in a state of pupilage. To the second question, I answer, that I think the patent ought to issue to the vendee of Scott, or his representatives. They will, of course, hold in trust for the equitable proprietors, or subsequent assignee. But lest they should convey to bona fide purchasers, for valuable consideration, the patent might bear upon the face of it a declaration of trust. At least I see no possible objection to this course, which is analogous to that advised by my predecessor, (Mr. Gilpin.) The act of July 5, 1838, authorizing the issuing of patents to the last bona fide transferee of reservations, under the treaty of 1832, between the United States and the Creek tribe of Indians, is a legislative exposition of the law in a case altogether analogous, and it confirms the opinion I have formed on this subject, independently of all authority. In general, it is, in the absence of positive statutes to the contrary, the most advisable course for the executive department to look to legal rights, and to leave the settlement of equities to the proper forums. Precautions must, of course, be taken against any abuse by those to whom it gives a preference of the legal rights vested in them. This, I think, may be effectually done by conveying to the assignee of the reservee, in trust for his equitable assignees. In the instance before me, there is a grave and special reason for not treating the right of the Indian as indefinitely assignable. It is, that it can only be assigned with the express consent of the President to the reasonableness of the sale made of it. Now, if the vendee may treat for his equity under the sale, before the approval, either the Indian must be defrauded of his right to the President's protection, or the assignee of the vendee, by the President's exercise of that right; it may be after a purchase without notice. I think it safer to adhere to the course of the office, and to leave claimants under assignments to the parties, or the courts. I have the honor to be, sir, your obedient servant, Hon. JOHN C. SPENCER, H. S. LEGARE. Secretary of War. PENSION TO MINISTERS. Commodore Porter, who is borne on the pension-roll at the rate of forty dollars per month, is entitled both to his pension and his regular pay as minister at Constantinople. OFFICE OF THE ATTORNEY GENERAL, May 26, 1842. SIR: The following question, submitted to you by the Second Comptroller, has been considered by me: "Captain David Porter, minister at Constantinople, is borne on the navy pension-roll at the rate of $40 per month. I have respectfully to inquire whether he is entitled to his pension under the law of August 16, 1841, c. 8, while he is in the receipt of his pay as minister?" I am of opinion that the case of the minister at Constantinople does not fall within the second section of the act of August 16, 1841, which seems confined to persons in the naval service. I have the honor to be, sir, your obedient servant, Hon. A. P. UPSHUR, H. S. LEGARE. Secretary of the Navy. ADJUSTMENT OF CONFLICTING LAND CLAIMS. An act of Congress confirming land titles of two or more individuals, or granting land, must be taken all together; and if there be not land enough to answer all the grants, and there be a conflict of claims, must be reconciled by reference to the report of the commissioners on which the act was founded; and if two parts of the same act cannot be reconciled, the latter provisions must prevail. OFFICE OF THE ATTORNEY GENERAL, May 28, 1842. SIR: In compliance with your request, I have considered the case submitted to you by the late Commissioner of the General Land Office, in his letter of the 4th instant, of a conflict of claims between John McDonell, assignee of Thomas Smith and William Brown. The Commissioner's letter states the case as follows: "In manuscript vol. 4, p. 95, of the report of the commissioners on Michigan claims under the act of 11th May, 1820, (Clark's Land Laws, p. 776,) claim No. 46 is entered in the name of John McDonell, assignee of Thomas Smith as the trustee of Johu Smith, McDonell and others. (American State Papers-Public Lands, vol. 4, p. 783.) The report represents the claim as situate between the forks of the river Ecorces, adjoining a tract of land in front already confirmed to the said Thomas Smith, the assignor, by a patent from the United States.” The commissioners (p. 784 of vol. 4, State Papers) state their opinion on this claim as follows, viz: "that the original claimant, Thomas Smith, might, with justice and equity, have been confirmed by former land boards to the extent of 640 acres for each of the said several improvements, (referred to in their reports;) but as confirmation was formerly made only to the extent of 335 acres in the whole, and that, as the present board are advised, embraces most probably all the improvements made on the several tracts, therefore the present board do not consider themselves authorized to confirm beyond that which may be the residuum of the one tract heretofore confirmed. The commissioners do, therefore, confirm to the said John McDonell, as trustee, as aforesaid, 305 acres, and give in their report specific limits to the same; and the commissioners do further recommend to the favorable notice of Congress, for confirmation, the residue of said claim not heretofore or now confirmed." The residue here referred to is 1,280 acres-the whole claim being for 1,585 acres. The confirmatory law applicable to this case is that of the 17th April, 1828, (acts 1st sess. 20th Congress, p. 26,) the first section of which declares "that the claims purporting to be confirmed, or recommended for confirmation by the commissioners appointed to carry into effect the aforesaid act of 11th May, 1820, (Land Laws, p. 776,) which are contained in volumes 2, 4, and 5, be, and the same are, confirmed. The claim of William Brown, which conflicts with the foregoing, is the subject of a report of the commissioners under the act of 21st February, 1823, (Clark's Land Laws, p. 831) It is entered in manuscript vol. 9, supplement, p. 2: (State Papers, vol. 4, p. 844) William Brown, according to the report, claimed "a donation of land in rear of a farm owned by him situate on Detroit river, containing 118 acres; being part of a tract of land situate on the river Rouge, confirmed to Alexis Descountis Labadie, bounded in front by the river Detroit, on the west by the river Au Vase, and on the east by lands claimed by the late Francis Chobert." The commissioners, however, confirmed him as follows, viz: confirmed in 360 acres, or in such other quantity as shall be equal to the contents of the original tract, as the same was confirmed and patented to Alexis Descountis Labadie, and to be located on that part of the lands assigned for the satisfaction of the private land claims which was claimed by Thomas Smith, so as that the said 360 acres be so located as that the lines thereof do not conflict with the lines of any tract or tracts of land which may have been confirmed heretofore, or by the present board, to said Thomas Smith, or to any other person; the said William Brown to hold the same in trust for himself, and for the heirs and other assigns of said Alexis D. Labadie, according to their respective interests therein. "The same confirmatory act, viz: that of April 17, 1828, which confirmed the claim of John McDonell, confirms also the claim of William Brown-the second section of the said act declaring that the claims purporting to be confirmed, or recommended for confirmation, by the commissioners appointed to carry into effect the act of February 21, 1823, (Land Laws, p. 831,) which are contained in vols. 1, 3, 6, 8, and 9, of said reports, be and the same are hereby confirmed." "The aforesaid act of April 17, 1828, clearly confirms to John McDonell, as trustee, the tract of 305 acres, confirmed to him by the commissioners, which is immediately in the rear of the front tract confirmed to Thomas Smith; and between this tract of 305 acres, to which (as stated) there is a specific location given by the commissioners in favor of McDonell, there can be no conflict with the claim of Brown." The first question arising in the case is— 1. Whether or not, under the following recommendation, viz:-the commissioners do further recommend to the favorable notice of Congress, for confirmation, the residue of said claim not heretofore or now confirmedthe said John McDonell is confirmed by the act of April 17, 1828, to the whole of the residue of the claim, (1,280 acres,) in addition to the 305 acres confirmed by the commissioners and in the same report, and clearly confirmed by the said act? 2. If this question be decided in the negative, then the claim of Brown will take as a matter of course; but, if decided in the affirmative, the remaining point to be decided is, whether the aforesaid confirmatory act of April 17, 1828, must be construed so as to make the residue of McDonell's claim, viz: "1,280 acres, subject to the claim of William Brown under the distinct confirmation of the commissioners in favor of Brown, or whether the whole claim of McDonell, reported under a prior law, must be recognised as an absolute confirmation, and as thereby rendering nugatory the claim of Brown to portion of the same land?" This state of facts presents a question of some difficulty; and, arising as it does out of a direct, and at the first sight apparently irreconcilable conflict of positive enactments, I pronounce, without any confidence, the judgment to which my best reflections have led me. I assume, without asserting, that the awards of the commissioners were just and conformable to their powers. The matter is to interpret them. If you feel your self bound to construe the acts of Congress literally, there is no doubt that you must allow-first, the confirmation to Smith's assignee of 305 acres; second, the confirmation to Brown; third, give what may remain of unappropriated land, answering the description of the commissioners, to Smith's assignee. I say the letter of the awards and the statutes require this. The commissioners allow Brown 360 acres, &c., to be located on that part of the land assigned for the satisfaction of the private land claim which was claimed by Thomas Smith, with this, and only this, reserve that the claim thus confirmed should be so located as that the lines thereof do not conflict with the lines of any tract or tracts of land which may have been confirmed heretofore, or by the present board, to said Thomas Smith, or to any other person. Now, it is certain that the locus in quo was not confirmed, strictly speaking, by the board, to Smith, or to any other person; for the board expressly denied its competence to confirm it, and only recommend it for confirmation by Congress, which is quite a different thing. Had Congress done no more than ratify the claims confirmed by the board, no shadow of doubt could have arisen; but that, notwithstanding this recom |