styled thus: Shorter, Tarver, & Shorter,' with a transfer signed and written as above, by one of the partners, purporting to convey the interest of all of them."

In such a case I would say that, by the assignment to "Shorter, Tarver, & Shorter," an interest in the approved contract was vested in each of these three individuals, which could not be divested without his consent, evidenced by his own act or signature, or by some person legally authorized to act for him in that particular. I am therefore of opinion that a transfer made by one of them, by signing the names of all, does not transfer the right of those who have not signed; and, to make such an assignment available, it must be shown that the individual making the assignment was authorized by the others to make it. This may be shown by an express power of attorney, by articles of copartnership giving such authority, or by the parties giving their present assent to it. Anything short of the course I have pointed out, would not only be a departure from the law, which permits no property to be taken from any individual in cases like the present, without his consent, shown in some authentic manner; but a contrary practice would expose one partner and his legal representatives to all the dangers arising from the faithlessness or frauds of another.

2. "Cases in which the approved contracts are in favor of a company thus: M. W. Perry & Co.,' with a transfer signed in that manner.

In my opinion, the Commissioner of the General Land Office is not bound to search for and ascertain who the members of this company may be. M. W. Perry is the only person he can legally know, or take notice of; therefore, if an assignment be made to M. W. Perry & Co., and M. W. Perry shall have made an assignment in the same manner, the patent should issue to such assignee, if there be no other difficulty in the case.

3. "Cases in which the approved contracts are in favor of individuals, giving their names in full, thus: Eli S. Shorter' and 'John T. Scott,' with a transfer signed in that manner; but both names to the assignment being apparently in one and the same handwriting."

I consider the answer to the first question as a full answer to this inquiry.

4. "Cases in which the approved contracts are endorsed in blank, by having simply the names of the first purchasers endorsed thereon.'

The endorsement of the name of the purchaser on the approved contract is evidence of his having disposed of it; and the possession of it by another person (no other claim to it being presented) is, in my opinion, sufficient evidence to warrant the issuance of a patent to the party having possession of the approved contract.

5. "Cases in which a transfer is executed on the approved contract, without being acknowledged before any officer authorized to take acknowledgments."

I would remark, that there is no law requiring these assignments to be acknowledged before any officer; and it would frequently operate very unjustly to subject these assignments to the operation of a rule made after they were executed; and the proviso to the act of July 5, 1838, certainly did not contemplate the production of an assignment, acknowledged before an officer authorized to take acknowledgments, as the only evidence of assignment which should be received by the Commissioner, or they would have used the language "that the person or persons applying for

such patent or patents shall adduce satisfactory proof to the Commissioner of the General Land Office of the fairness of said several preceding transfers or assignments." It might be very proper to make regulations requiring assignments to be acknowledged before certain officers, applicable to assignments made after such regulations should be made and promul-gated; but it would be very unjust to subject past transactions to such regulations, and, in my opinion, would, in this instance, be contrary to the intention of Congress, as expressed in the above proviso.

6. "Cases in which the approved contract is in possession of a party claiming to be owner, who relies on such possession as sufficient evidence of ownership, in the absence of any written evidence of transfer."

It is indispensable in all these cases that evidence should exist showing that the owner has disposed of and divested himself of his interest. This can only be done by some act of his-such as making an assignment in the usual form, or placing his name upon the back, or some other part of the approved contract; thereby acknowledging the blank assignment to be filled up by the owner or person to whom he has delivered the same. But, in the cases to which you refer, there is no evidence whatever of any disposition of the approved contract having been made by the original owner thereof. Possession, unaccompanied by any other evidence showing a right, would not, in my opinion, justify the issuing of a patent to these claimants. The possession may have been acquired improperly and illegally.

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

To the SECRETARY OF THE TREASURY.

FELIX GRUNDY,

PRIORITY OF RIGHT TO CONFIRMED LANDS IN MISSOURI.

The inhabitants of the village of St. Charles, under the laws of the 13th June, 1812, the 26th May, 1824, and the 27th January, 1831, have precedence and priority over Peter Chouteau, whose claim to land was confirmed 4th July, 1836, and the claim of the latter must be located elsewhere upon the public domain.

All sales and locations made of lands claimed under unconfirmed titles derived from France or Spain, between the 26th of May, 1830, and the 9th of July, 1832, are valid.

If it be claimed that this construction violates treaty obligations, the answer is, that the parties must go to the judiciary for a decision declaring void an act of Congress, not to the Executive department.

ATTORNEY GENERAL'S OFFICE,
March 18, 1839..

SIR: I have the honor to acknowledge the receipt of yours of the 9th of January last, asking my opinion upon two questions raised in a letter from the Commissioner of the General Land Office to you, dated Septem-ber 13th, 1838. My attendance upon the late session of the Supreme Court and other urgent business have prevented an earlier reply.

The first question referred to me relates to the conflicting claims of the inhabitants of the village of St. Charles and Peter Chouteau.

In relation to Chouteau's claim, it appears that on the 9th of July, 1832, an act of Congress was approved, entitled "An act for the final adjustment of private land claims in Missouri."

The first section of this act provides, "That it shall be the duty of the

recorder of land titles in the State of Missouri, and two commissioners to be appointed by the President of the United States, by and with the advice and consent of the Senate, to examine all the unconfirmed claims to land in that State, heretofore filed in the office of said recorder, according to law, founded upon any incomplete grant, concession, warrant, or order of survey, issued by the authority of France or Spain, prior to the 10th of March, 1804, and to class the same so as to show-first, what claims, in their opinion, would in fact have been confirmed according to the laws, usages, and customs of the Spanish government, and the prac tice of the Spanish authorities under them, at New Orleans, if the gov ernment under which such claims originated had continued in Missouri; and, secondly, what claims, in their opinion, are destitute of merit in law or equity under such laws, usages, customs, and practice of the Spanish authorities aforesaid; and shall also assign their reasons for the opinions so to be given."

Under this provision of the law, the recorder and commissioners proceeded in the discharge of their duties, and subsequently reported to Congress their opinions in favor of various claims; among which, was this claim of Chouteau.

Upon the reception of this report, Congress, by the act of July 4th, 1836, entitled "An act confirming claims to land in the State of Missouri, and for other purposes," confirmed the claims upon which the commissioners had decided favorably, with certain specified exceptions. Among those confirmed, Chouteau's was included.

The second section of the act, however, provides, "That if it shall be found that any tract or tracts confirmed as aforesaid, or any part thereof, had been previously located by any other person or persons, under any law of the United States, or had been surveyed and sold by the United States, this act shall confer no title to such lands, in opposition to the right acquired by such location or purchase; but the individual or individuals whose claims are hereby confirmed shall be permitted to locate so much thereof as interferes with such location or purchase, on any unappropriated land of the United States within the State of Missouri or Territory of Arkansas, in whichever the original claim may be, that may be subject to entry at private sale.

If, therefore, upon locating any of the claims confirmed by the first section of this act, it shall be ascertained that it covers in whole or in part any other tract previously located under any former law of the United States, then the claimant whose title is thus confirmed by the act shall not be entitled to the same, but be allowed to locate elsewhere upon the public domain. The only remaining inquiry, then, is, Had this land in controversy been previously located, under any law of the United States, by any other person or persons? or, in other words, had it been located or appropriated for the inhabitants of St. Charles, under the laws of Congress of the 13th of June, 1812, the 26th of May, 1824, and the 27th of January, 1831, relating to the settlement of various land claims in Missouri, and, among others, to the claim of the town or village of St. Charles now in controversy?

The first section of the act of Congress of the 13th of June, 1812, entitled "An act making further provision for settling the claims to land in the Territory of Missouri," confirms to certain towns and villages therein specified (among which is the village or town of St. Charles) their rights,

titles, and claims to certain lots or lands" which had been inhabited, cultivated, or possessed by them, prior to the 20th of December, 1803," and directed the surveyor general to survey the said lots or lands, and transmit plats thereof to the General Land Office.

On the 26th of May, 1824, an act supplementary to this act was approved; the second section of which directs the surveyor general, among other things, "to survey and designate, so soon after the passage of this act as may be, the commons belonging to the said towns and villages, [among which was the village or town of St. Charles,] according to their respective claims and confirmations, under the said act of Congress, [of 13th of June, 1812,] where the same has not already been done."

On the 27th of January, 1831, another act of Congress was approved, relating almost exclusively to this same subject. It is entitled "An act further supplemental to the act entitled 'An act making further provision for settling the claims to land in the Territory of Missouri,' passed the 13th day of June, 1812."

The first section of this act is in these words: "That the United States do hereby relinquish to the inhabitants of the several towns or villages of Portage de Sioux, St. Charles, St. Louis, St. Ferdinand, Ville a Robert, Carondelet, St. Genevieve, New Madrid, New Bourbon, and Little Prairie, in the State of Missouri, all the right, title, and interest of the United States, in and to the town or village lots, out-lots, common field lots, and commons, in, adjoining, and belonging to, the said towns or villages, confirmed to them, respectively, by the first section of the act of Congress entitled 'An act making further provision for settling claims to land in the Territory of Missouri,' passed the 13th day of June, 1812; to be held by the inhabitants of the said towns and villages in full property, according to their several rights therein, to be regulated or disposed of for the use of the inhabitants, according to the laws of the State of Missouri."

This law clearly confirms the previous survey and locations of this land under the previous laws of 1812 and 1824, and makes a complete legisla tive grant of it to the village or town of St. Charles. And a legislative grant undoubtedly confers as good and valid a title, in every respect, as a patent regularly and fairly issued under the laws of the United States. That the land in controversy, then, had been located and granted to the village or town of St. Charles, under a law of Congress, prior to the 4th of July, 1836, when Chouteau's claim to the same, or a portion of the same land, was confirmed by Congress, admits of no doubt; and the contingency provided for in the second section of the same act has therefore occurred; and Chouteau's claim, so far as it interferes with the rights of the inhabitants of St. Charles, must, according to the provisions of the second section of this act, be located, if located at all, elsewhere upon the public domain. If this is not such a case as was contemplated by Congress in the second section of the act referred to, I can conceive of none to which that provision can be more appropriately applied. I am sensible, however, of the importance of the principles involved in the consideration and decision of the relative merits of these conflicting claims-principles involving the plighted faith and honor of the nation, expressed in the solemn form a treaty. I am aware, too, that it may possibly be said that the law of Congress referred to, being in violation of the rights of private property recognised and sanctioned by a national treaty, should be pronounced void. I am not called upon to decide that question. If a law

of Congress is to be pronounced void in a case like the present, the Genre. ral Land Office is not the proper forum for such purpose; and until it is so declared or pronounced by a competent tribunal, the General Land Office should follow its plain and obvious directions. And such, in my judg ment, are its directions in the present case.

The second question submitted for my consideration is, "whether sales or locations made of lands claimed under unconfirmed titles derived from France or Spain, between the 26th of May, 1830, when the act of the 26th of May, 1824, expired, and the 9th of July, 1832, when the act for the final adjustment of private land claims in Missouri was approved, are valid?" This question, in my judgment, admits of no doubt; so far as relates to the action of the General Land Office, such entries and locations are to be treated as valid.

Leaving the rights of all parties to be ultimately decided on by the judiciary, my opinion and advice is, that no patent should issue from the Gene'ral Land Office, under the confirmatory act, for lands already granted by Congress, or for lands located under and in pursuance of any law of the United States prior to the passage of the act above referred to.

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

To the SECRETARY OF THE TREASURY.

FELIX GRUNDY.

THE CHEROKEE FUND NOT LIABLE FOR DAMAGES, &c.

The Cherokee fund is not liable for damages arising from the non-fulfilment by the government of contracts made for the removal of, and supplies for, the Cherokee Indians.

ATTORNEY GENERAL'S OFFICE,

March 20, 1839.

SIR: Your letter of the 16th instant is before me, in which you ask my opinion upon the following point:-whether the money agreed by the United States to be paid for the cession of land made by the treaty of 1835, with the Cherokees, or the sum appropriated by the law of the 12th of September last, is liable for the damages claimed in the three cases enumerated in your communication?

I have given to this subject a careful and anxious consideration, and now proceed to give you the result of my reflections. The three cases are the following:

1. Williamson Smith made a contract with the government for the removal of the Cherokees to the west of the Mississippi. He, at great expense, prepared himself to fulfil his engagement, and actually removed a portion of them, and was ready to proceed and effect an entire removal.

2. Clemens, Bryan; & Co., made a contract for provisioning a portion of the Cherokees in their removal. To enable them to comply with their contracts, they made large purchases of cattle, provisions, &c., which have been thrown upon their hands, much to their injury, &c.

3. Langtry and Jenkins contracted to deliver three thousand pairs of shoes for the Indians, at the Indian agency, at $1.30 per pair. They purchased the shoes, and carried them to the agency, according to contract; they were not received, because John Ross, the new agent for the