a restriction upon the powers conferred upon the President, by the preceding act, and declares that nothing contained in that act "shall be construed to authorize the President of the United States to direct any sum appropriated to fortifications, arsenals, armories, custom-houses, docks, navy yards, or buildings of any sort, or to munitions of war, or to the pay of the army or navy, to be applied to any other object of public expenditure."

This last provision was modified, so far as relates to the support of the military establishment; and, in that particular, the act of the 3d of March, 1809, was restored by the act of 16th of February, 1818, as to appropriations made prior to the 1st of January, 1817.

The act of the 3d of May, 1820, so far annuls the act of the 3d of March, 1809, as to authorize the President to direct a portion of the moneys appropriated for any of the following branches of expenditure in the military department, to wit: for the subsistence of the army, for forage, for the medical and hospital departments, and for the quartermaster's department, to be applied to any other of the abovementioned branches of expenditure in the same department. And the President is authorized by said act to direct a portion of the moneys appropriated for any of the following branches of expenditure in the naval department, to wit: for provisions, for medicine and hospital stores, for repairs of vessels, and for clothing, to be applied to any other of the abovementioned branches of expenditure in the same department; and that no transfers of appropriation from or to other branches of expenditure shall be thereafter made. And this act also repeals so much of the act of the 16th of February, 1818, as is above referred to.

The act of the 6th of April, 1838, making appropriations for the civil and diplomatic expenses of the government for the year 1838, confers the same power on the President, in relation to the transfer of funds appropriated for the Post Office Department, under one head of service, to any other branch of the public service in the said department, which he possessed under former laws, as to transfers in the other departments.

I have been thus particular in referring to the different acts of Congress upon this subject, not only for the purpose of showing the vigilance and caution which have been exercised by that body in guarding this power, (which, from necessity, in certain cases was conferred on the Executive,) from any possible abuse, but also for the purpose of showing that, where Congress deemed this authority of transfer necessary and proper, it has been conferred on the President expressly. But even in these cases, it is never to be exercised, except upon the application of a responsible head of an executive department, to whom is confided the execution of that branch of the public service. In this case, the application is made by the Clerk of the House of Representatives, who has not been directed by any law to make it; and the object is, the disposition of the money designed and provided by Congress for the accommodation and convenience of the members of the House, by Executive interference, without any law authorizing it.

I am aware of the existence of but one precedent in favor of the power of the President to make the transfer asked for. In the year 1824 a similar transfer was made, upon a failure of the contingent fund of the House of Representatives. Upon full consideration, I am unable to discover any legal sanction for the act, and am constrained to say that I do not think

the case was well considered. The conclusion to which I have arrived is, that the President does not possess the power to act in the case now before me; and my convictions are too strong to permit me to advise him to follow a single precedent, which, in my judgment, was not warranted by law.

I am, sir, &c., &c.,

To the SECRETARY OF THE TREASURY.

FELIX GRUNDY.

EXTENSION OF PATENTS FOR INVENTIONS.

Extension of patents for useful inventions may be granted to the legal representatives of original patentees, where such patentees, if living, would be entitled thereto.

ATTORNEY GENERAL'S OFFICE,

April 9, 1839.

SIR: I have the honor to acknowledge the receipt of yours of the 6th instant, accompanied by a communication from the Commissioner of Patents, presenting the following question for my opinion: "Whether the legal representatives of an original patentee can obtain an extension of a patent in a case where the original patentee, if living, would be entitled to such extension upon his own application."

By the 5th section of the act of 4th of July, 1836, entitled "An act to promote the progress of useful arts, and to repeal all acts and parts of acts heretofore made for that purpose," it is provided that all patents issuing from the office of the Commissioner of Patents shall, in its terms, grant to the applicant or applicants, his or their heirs, executors, administrators, or assigns, for a term not exceeding fourteen years, the full and exclusive right and liberty of making, using, and vending to others to be used, the said invention or discovery.

In section 10 of the same act it is further provided, that when any person hath made, or shall have made, any new invention, discovery, or improvement, on account of which a patent might, by virtue of this act, be granted, and such person shall die before any patent shall be granted therefor, the right of applying for and obtaining such patent shall devolve on the executor or administrator of such person, in trust for the heirs atlaw of the deceased, if he shall have died intestate; but, if otherwise, then in trust for his devisees, in as full and ample manner, and under the same conditions, limitations, and restrictions, as the same was held, or might have been claimed or enjoyed, by such person in his or her lifetime.

The 18th section of the same act declares, that whenever any patentee of an invention or discovery shall desire an extension of his patent beyond the term of its limitation, he may make application therefor, in writ. ing, to the Commissioner of the Patent Office, setting forth the grounds thereof, &c.

Upon a view of all these provisions, it is evident that Congress intended to afford to the author of every useful invention or discovery an opportunity to indemnify himself for his labor and expense in making such invention or discovery, by giving to him its exclusive use for a period of time which might answer that purpose; and provision is ex

pressly made, in case of his death before his first application, that his executor or administrator may, upon application, obtain a patent for the benefit of his estate. Congress foresaw that cases would occur in which this indemnity would not be obtained within the fourteen years limited in the patent; therefore it is provided that an extension of the patent may be procured. Under such circumstances, I can see no reason why an executor or administrator should be permitted to obtain a patent in the first instance, which will not apply with equal force to the extension of a patent, upon a case being properly made out.

I am, therefore, of opinion that the board of commissioners created by the 18th section of the act above referred to have jurisdiction, and may act upon the application of Henry Nyman, administrator of Ezra Slifer, and decide on the same, in the same manner as though the application had been made in the lifetime of the latter.

I am, sir, &c., &c.,

To the SECRETARY OF STATE.

FELIX GRUNDY.

BIDDING AT LAND SALES.

Where a lot of land offered at auction at a public land sale was struck off to A, who advanced the money, and took a receipt therefor, and B, on the same day, offered evidence to prove that he nodded to the auctioneer, and that his nod was equivalent to a bid for said land above that of A, and that, thereupon, the land officers put up the land again on a subsequent day, and struck off the same to C, who conveyed it to B, who disputes A's title-HELD, that if B intended his nod at the first sale to be a bid above A, he should have promptly disclosed it at the time, and invoked the land officers to remedy the inobservance or neglect of the auctioneer; and that, as this was not done, the patent must issue to A, to whom it was struck off at the first sale.

ATTORNEY GENERAL'S OFFICE,

April 10, 1839.

SIR: I have had the honor to receive your communication referring to me, for my opinion thereon, the conflicting claims of Daniel Whitney and George McWilliams. The facts of the case appear to be these: On the 16th day of November, 1835, the sales of public lands commenced at Green Bay; and on that day the lot of land now in controversy was set up at auction, and struck off to Daniel Whitney. After the sale, and on the same day, Whitney paid for the land, and took the usual receipt. After this, but still on the same day, evidence was offered to the register and receiver to prove that James D. Doty had, during the sale, and before the lot in question was struck off to Whitney, nodded to the auctioneer; which nod was intended for a bid above that of Whitney, but was unperceived or disregarded by the auctioneer. Upon this evidence, the land officers determined again to offer the lot for sale at auction on the next day, notified Whitney of the fact, and offered to refund him his money. On the next day the land was accordingly offered again for sale, and struck off to George McWilliams, who assigned it to James D. Doty. In this state of the case, my opinion is asked as to which of these two sales should be avoided, and which confirmed.

This case does not require me to decide to what extent, and what kind of, errors or mistakes committed at the sales of public lands can be cor

:

rected elsewhere than at the General Land Office; nor does it require me to decide how far, and under what circumstances, the act of nodding is to be considered as a bid; nor am I required to say whether the act of striking the land off by an auctioneer, of itself, conclusively settles the question of sale. I am clearly of opinion, however, that the bid of James D. Doty in this case (if, indeed, it can be considered as a bid at all) was not made known as soon as, under the circumstances of the case, it might and ought to have been made known. When he made his bid, and saw that it was unobserved or disregarded, and heard the land cried upon the preceding bid, and ultimately struck off to another, the fact should have been promptly and openly disclosed at the moment, if at all, and the aid of the land officers been at once invoked to remedy the inobservance or neglect of the auctioneer. This does not appear to me to have been done with that promptitude which the case required. I am therefore of opinion that justice and policy require that the patent for the lot in controversy should be issued to Whitney.

I am, sir, &c., &c.,

To the SECRETARY OF THE TREASURY.

FELIX GRUNDY.

COMPENSATION OF COLLECTORS OF CUSTOMS.

By the acquiescence of the government, and the construction given in several judicial decisions, entitled to respect, the act of the 7th of May, 1822, in relation to the compensation of officers of the customs, is not deemed to work a repeal of the act of the 2d of March, 1799, in relation to the same subject.

ATTORNEY GENERAL'S OFFICE,

April 11, 1839.

SIR: I have had the honor to receive your communication relative to the claim of Mr. Henshaw, late collector of the port of Boston, to certain fees and emoluments of office.

On the 2d of March, 1799, an act of Congress was approved, entitled "An act to establish the compensation of officers employed in the collection of duties on imports and tonnage." The 4th section of this act provides "that, whenever a collector shall die or resign, the commissions to which he would have been entitled on the receipt of all duties bonded by him shall be equally divided between the collector resigning, or the legal representatives of such deceased collector, and his successor in office, whose duty it shall be to collect the same; and, for this purpose, all the official books, papers, and accounts of the collector resigning, or deceased, shall be delivered over to such successor."

On the 7th of May, 1822, another act of Congress relative to the same subject-matter was approved, entitled "An act further to establish the compensation of officers of the customs," &c. The seventh section of this act establishes a new rate of compensation in relation to various collectors; among which, was the collector of the port of Boston. And the ninth section provides, "that whenever the emoluments of any collector of the customs of either of the ports of Boston, New York, Philadelphia, Baltimore, Charleston, Savannah, or New Orleans, shall exceed four thousand dollars in any one year, after deducting the necessary expenses incident to his office in the same year, the excess shall, in every such case, be paid into the treasury for the use of the United States."

The legal question presented for my consideration is, whether these provisions of the act of 1822 repeal the provision of the act of 1799, above referred to? If this were a new question, unaffected by the practice of the Treasury Department, or by judicial interpretation, my opinion would be in the affirmative; but the almost uniform usage of the department, under the law of 1822, is based upon an opposite construction of it. There are also some judicial decisions entitled to high respect, which seem to sanction the same view. Under these circumstances, my opinion is, that the department should continue its former practice until Congress shall act on the subject, and the law of 1822 be considered as not repealing the above-mentioned provision of the act of 1799.

I am, sir, &c., &c.,

To the SECRETARY OF THE TREASURY.

FELIX GRUNDY.

DISTRIBUTION OF PRIZE-MONEY.

Distribution of certain moneys, appropriated by Congress as prize-money, among the officers and crew of two gun-boats, must be made in the proportions and to the persons pointed out by the general laws and regulations of the navy applicable to the subject.

ATTORNEY GENERAL'S OFFICE,

April 13, 1839.

SIR: I have the honor to acknowledge the receipt of your communication of yesterday, asking my opinion relative to the proper construction of the act of Congress approved the 3d of March last, providing for the distribution of five thousand four hundred and sixty-five dollars ($5,465) of prize

money among the officers and crew of two gun boats therein specified, as a reward for a gallant and praiseworthy act performed by said officers and crews during the year 1816. It will be observed that the act appropriating this money directs that it "shall be distributed as prizemoney," and does not direct specifically what proportion of it each officer and each one of the crews of said gun-boats shall receive. Under these circumstances, my opinion is that Congress intended that it should be distributed in the proportions and to the persons pointed out by the general laws and regulations of the navy applicable to the subject.

The act of Congress approved 23d of April, 1800, entitled "An act for the better government of the navy of the United States," contains the rules on this subject; and the first clause of the sixth section of that act provides that prize money shall be distributed as follows: "To the commanding officers of fleets, squadrons, or single ships, three-twentieths-of which, the commanding officer of the fleets or squadrons shall have onetwentieth, if the prize be taken by a ship or vessel acting under his command, and the commander of single ships two twentieths; but where a prize is taken by a ship acting independently of such officer, the threetwentieths shall belong to the commander."

To my mind, these provisions of law are plain, and admit of no doubt in their application to this case. The commander of the squadron to which the two gun-boats above referred to were attached, is, under this