approval, it is impossible to express an opinion as to its effect; but, taking the statement of the Commissioner of Indian Affairs in regard to it, I presume it is merely a general assent to the stipulations of the convention, expressed four years ago, just after its terms were agreed on between the two tribes. If so, I am of opinion that it is not an act which can be regarded as such an assent on the part of the President and Senate to the withdrawal or sale of the Chickasaw investments, as is required either by the 11th article of the Chickasaw treaty of 20th October, 1832, creating the fund, or by the 13th article of that of 24th May, 1834, which authorizes the application of a portion of it to the purchase of a new home. Both those articles appear to me to contemplate the consent of the President and Senate as being given with a full knowledge of all the circumstances attending the alteration or diminution of the investment; they are its especial guardians; and they are not only to judge of the propriety and mode of interfering with it, but they are to decide whether such interference is more or less expedient than an advance of the necessary amount from the treasury of the United States on a pledge of the stocks-an alternative provided by the treaty for the very event which has now occurred. The fact of the great depreciation in the value of the stock, and the consideration how far it should be drawn, on the one hand, from the Chickasaw fund, at a heavy sacrifice, or be given, on the other, to the Choctaws, at a higher valuation than it bears in the market, are certainly circumstances that must materially affect this consent, and influence the adoption of either of the modes contemplated by the treaty. In the general and formal approval of the convention for the sale of the land four years since, they were not, of course, taken into view; and that approval, therefore, cannot now be regarded as such a consent as the terms of both treaties require.

To the SECRETARY OF WAR.

H. D. GILPIN.

NOTICE OF APPLICATION FOR EXTENSION OF PATENTS FOR INVENTIONS.

Applications for extensions of patents for inventions must be made to the Commissioner a sufficient time before the expiration of the term for which they were issued, to enable him to give the notice contemplated by the act of 4th of July, 1836, to the public in that section of the country most interested adversely to them. Patentees who neglect to make seasonable applications for extensions must forego the advantages which such extensions confer

ATTORNEY GENERAL'S OFFICE,

November 21, 1840.

SIR: I had the honor to receive the letter of the Commissioner of Patents, dated this day, with accompanying documents, relative to the application of William Gale for a renewal of the patent issued to him on the 7th December, 1826; and have considered your inquiry whether a sufficient time remains, previous to the expiration of the term for which it was originally issued, to enable the Commissioner to give the notice of the application which is required by the eighteenth section of the act of 4th of July, 1836. In reply, I have to state that, in my opinion, the period that will elapse before the expiration of this patent is not sufficient to allow the notice con

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templated by the provisions of the act. They direct 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 writing, to the Commissioner of the Patent Office, setting forth the grounds thereof; and the Commissioner shall, on the applicant's paying the sum of forty dollars to the credit of the treasury, as in the case of an original application for a patent, cause to be published in one or more of the principal newspapers in the city of Washington, and in such other paper or papers as he may deem proper, published in the section of country most interested adversely to the extension of the patent, a notice of such appli. cation, and the time and place when and where the same will be considered, that any person may appear and show cause why the extension should not be granted." The proviso at the close of the same section directs "that no extension of a patent shall be granted after the expiration of the term for which it was originally issued."

The object of these provisions is, while a special privilege may be ex. tended to a patentee for his own peculiar benefit, to protect the public, and to guard against such an extension being allowed, without securing an opportunity to every citizen to appear and oppose it. For this purpose, the duty of publishing a notice of the application, and of the time and place of its consideration, is specially imposed on the Commissioner of Patents. It is expressly directed that such notice shall be published wherever an adverse interest is supposed to exist. The improvement patented by Mr. Gale relates to a branch of manufacture carried on in every part of the United States. To give any notice whatever of the applica. tion, in some districts, is now scarcely practicable. To give such notice as it was evidently the intention of Congress to require, is certainly impossible. Had the patentee made the application (which rested entirely with him) at a proper time, the object of Congress would have been attained, and he might have secured the privilege he seeks, without detriment to the public; as it is, it is evident that, were it now accorded, it might be to the detriment of the community, arising from a neglect on his own part to comply with a provision, of which he cannot be presumed to have been ignorant, and for which he offers no reason whatever. H. D. GILPIN.

To the SECRETARY OF STATE.

CONFIRMATION OF SALES OF CERTAIN CREEK RESERVATIONS.

The President of the United States may properly confirm sales of Creek reservations made by administrators pursuant to the orders of courts having jurisdiction, whether the distribution of the proceeds among the heirs shall have been correctly made or not; provided the purchasers shall have paid in the purchase-money in good faith to the administrators or legal representatives.

But where purchasers have withheld any portion of the purchase-money on any pretence, or the administrators themselves were the purchasers, and have not accounted for the purchasemoney, sales ought not to be confirmed.

ATTORNEY GENERAL'S OFFICE, December 3, 1840. SIR: I had the honor to receive your letter of the 24th of November, enclosing the papers relative to a confirmation by the President, in pursu

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ance of the act of 3d of March, 1837, of four sales of certain Indian reservations under the Creek treaty of 4th of April, 1832; and requesting my opinion as to the correctness of the decision of the Commissioner of Indian Affairs in relation thereto.

In my letter to you of the 27th of July, 1840, relative to the proper construction of that treaty and of the same act of Congress, I expressed the opinion, that, in cases where sales of these reservations have been regularly made by order of the orphans' court of Alabama, and there is no question as to the jurisdiction of the court, the fairness of the price, and its payment to the administrator with the sanction of the court, a bona fide purchaser is entitled to the confirmation he asks, without being made answerable for the proper subsequent distribution of the assets by the administrator; there being no authority to throw this duty on the purchaser by withholding his patent, instead of the heirs themselves, or the government of the United States on their behalf.

In the case of John G. Worsham against the heirs of Nocose Yoholo, and William Redd against the heirs of Hatch-ke-zee, the Commissioner of Indian Affairs, in his reports transmitted with your letter, does not object to the confirmations on any of the grounds above referred to. He objects in the former case, because there is evidence making it probable that the administrator has not paid over to the heirs of Nocose Yoholo the whole sum received by him; and in the latter, because the distributive portion of a minor child of Hatch-ke-zee yet remains in the hands of the guardian; and also because a sum of $300, part of the purchasemoney, never was paid to the commissioners appointed by the orphans' court, or to the administrator, but to a person claiming to be entitled to that sum under a contract alleged to have been made with the intestate in his lifetime, but which does not appear to have been proved or allowed in any settlement of the intestate's estate. The Commissioner thinks that the sales should not be confirmed to the purchasers until all these payments shall have been made. I am of opinion that the sale in the latter case ought not to be confirmed until payment of the above $300 shall be "received," as the act of Congress requires, or until it be satisfactorily shown that the whole purchase-money, including the above $300, has been paid to the administrator or the legal representatives of the deceased; but I think the payments, under the sanction of the court, of the distributive share of the minor child of Hatch-ke-zee to its legal guardian, and of the whole amount (except costs) of the purchase-money to the administrator of Nocose Yoholo, are sufficient to remove any ob. jection to the confirmations in those respects, so far as the purchaser is concerned. It is the duty, not of him, but of the United States, to see that the guardian and administrator discharged their obligations to the Indians by a proper disposition of the assets.

In the case of John Sims against the heirs of Han-lop-ho kee and the heirs of Tap-pe-nay, it appears that the administrator was himself the purchaser; and there is no evidence of his having accounted for the purchase-money, settled his administration account, or paid over the money to the heirs of the deceased, or any persons legally entitled thereto. These facts are regarded by the Commissioner of Indian Affairs as sufficient to warrant a present refusal to confirm the purchase. In my opinion, they are so. The act of Congress authorizes the President to confirm sales made by an administrator only on his "receiving the purchasemoney," or being satisfied that the administrator has "paid it to the persons entitled to it." This, I think, requires an actual payment by the purchaser, either to the United States or to the representatives of the deceased. If there be no positive legal objection under the law of Alabama to a sale of an intestate's estate to his own administrator, it would yet open a door to the greatest irregularity if a mere retention of the purchasemoney by the purchaser, at a sale made at his own instance, were to be construed into a "payment to the persons entitled to it." I am of opinion, therefore, that these sales should not be confirmed until the purchasemoney is received by the President of the United States, or until it is satisfactorily shown that the administrator has paid it over to the representatives of the deceased Indian, or accounted for it in the legal settlement of his administration account.

To the SECRETARY OF WAR.

H. D. GILPIN.

EXTRA COMPENSATION FOR EXTRA SERVICES.

The district attorney for the District of Columbia is entitled to a reasonable compensation, over and above his salary and stated fees, for attending, on the part of the United States, during the taking of certain depositions in said District in a case depending in the circuit court of Mis

souri.

ATTORNEY GENERAL'S OFFICE,

December 5, 1840.

SIR: I had the honor to receive your letter of the 30th November, 1840, relative to the claim of $60, presented by the attorney of the United States for this District, for attending, on behalf of the United States, during the taking of certain depositions in this District in a case pending in the circuit court of Missouri; and inquiring whether the same can be allowed, consistently with the third section of the act of 3d March, 1839.

The services were performed by the district attorney, under the direction of the Solicitor of the Treasury, who so instructed him at the instance and with the approbation of the Secretary of War, the head of the executive department in which the case in question arose; that officer deeming them indispensable, as they unquestionably were, for the protection of the interests of the United States. The allowance, under such circumstances, of such suitable compensation as the head of the executive department shall approve, is fully sanctioned by judicial decisions. Its propriety cannot, therefore, be doubted, unless the officer in question is precluded from receiving it by the third section of the act of 3d March, 1839.

In my letter to you of the 21st October, I adverted to the opinion of my predecessor of the 4th of April, 1839, as laying down the rule which has since been invariably adhered to, so far as I am aware, in the construction of that section. He expressed the opinion that it was only in cases where an act of Congress directed the payment for certain services, that there was any legal authority to allow them to be paid for out of a general ap. propriation to a person receiving an annual salary, or pay and emoluments fixed by law. Is there such a legal authority for the payment of these services? In my opinion, there is. The act of the 3d March, 1839, makes a general appropriation of $128,000 for the expenses of the judiciary

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establishment, and then goes on expressly to authorize the payment from it of the "expenses of suits in which the United States are concerned." This designation certainly embraces such services as those now in question. Without going into a minuteness of detail, which is impossible, such services could not have been more clearly designated.

To the SECRETARY OF THE TREASURY.

H. D. GILPIN.

COLLECTORS' BONDS, UNDER ACT OF JULY 4, 1840.

Under the act of July 4, 1840, all collectors of customs are required to execute bonds embracing, in terms, the new duties to which they are or may be subject.

Even at ports where there is a receiver general, there are some new and increased fiscal duties imposed on the collector which did not previously belong to him.

If the proper department shall deem it expedient, it may, in lieu of a new bond, embracing all the duties of the collector, take a new bond in a suitable penalty, embracing the new duties only, leaving the old one outstanding.

ATTORNEY GENERAL'S OFFICE,

December 7, 1840.

SIR: I had the honor to receive your letter, enclosing that of the collector of Boston, and inquiring whether, under a proper construction of the seventh and eighth sections of the act of 4th July, 1840, the department could dispense with a new bond from that officer, as the additional duties imposed by that act on depositaries of public moneys are not actually or necessarily performed by the collectors of the customs at places where an office of receiver general or treasurer of the mint is established, and because it is regarded as doubtful whether collectors at those places are "depositaries," within the proper meaning of that act.

In a previous communication, having reference to the collector of New York, (where, as at Boston, there is a receiver general,) I expressed the opinion that the act required a new bond to be executed, embracing, in terms, the new duties and responsibilities to which the collector might be subject. I have carefully reflected upon the ground taken by that officer, that he has performed no additional duties since the passage of the act; and that, in fact, the responsibilities have been lessened by the establishment of the office of receiver general. It has not, however, satisfied me that my pre. vious view is incorrect. The reason may show (as it undoubtedly does) that a new bond has not been necessary for the security of the United States, but not that the department is authorized to dispense with such an instrument.

The eighth section of the act of July 4, 1840, positively directs the execution of new bonds, suitable in their terms to meet any new and increased duties imposed by that law on any existing officer, and to cover any new responsibilities arising under that or any other act of Congress. Previous to its passage, the collectors of customs were required to "receive all moneys paid for duties, and to take bonds for securing the payment thereof; and to pay to the order of the officer who shall be authorized to direct the payment thereof, the whole of the moneys which they might respectively receive, [such moneys only excepted as they were otherwise by law directed to pay;] and once in every three months, or oftener if re. quired, to transmit their accounts for settlement to the proper officer."