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Pensions for Service in War of 1812.

tion will be released from any charge or claim upon it. Were this not the case, it would be obvious that the United States might hereafter be subjected to claims on account of such material from third persons, legal in their character if there existed a legal lien or charge upon the material in favor of a third party, or equitable if there were no such legal charge, by an appeal to the general equity of the United States if material had been used by it upon which third parties had an equitable claim.

In direct answer to your inquiry, I therefore reply that when payment is made for such material the engineer officer should be satisfied that it is free from any lien or other charge in favor of third parties, or should see that the payment is immediately applied to liquidating such lien or charge.

Very respectfully, your obedient servant,

Hon. GEORGE W. MCCRARY,

Secretary of War.

CHAS. DEVENS.

PENSIONS FOR SERVICE IN WAR OF 1812.

The provision in the first section of the act of March 9, 1878, chap. 28,
authorizing and directing the Secretary of the Interior "to place on
the pension-rolls the names of the surviving officers and enlisted and
drafted men
* of the military and naval service of the United
States, who served for fourteen days in the war with Great Britain,"
does not include service performed in the land or naval forces after the
ratification of the treaty of peace between the United States and Great
Britain, which took place February 17, 1815.

That act is to be construed in connection with the act of February 14,
1871, chap. 50, wherein the "war with Great Britain" referred to above
is expressly declared to have been terminated by the treaty of peace.
Held, accordingly, that a soldier who served fourteen days after the date
of the ratification of the treaty of peace is not entitled to the benefit of
the act of March 9, 1878.

DEPARTMENT OF JUSTICE,
September 21, 1878.

SIR: I have received your letter of the 23d ultimo, accompanied by a communication from Hon. Robert B. Vance and Hon. A. S. Merrimon, of North Carolina, in reference to the decision of the Department of the Interior in the claim of

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Pensions for Service in War of 1812.

Mrs. Mary Sams for pension under the act of March 9, 1878, on account of the service of her husband, James Sams, in the war of 1812.

You request my opinion upon the point upon which the rejection of the claim is based.

It appears that the husband of the applicant, James Sams, served in Captain Lowry's company of North Carolina militia from February 17, 1815, to March 12, 1815; and the question is whether he can be treated as having served fourteen days in the war of 1812 with Great Britain.

As the act of March 9, 1878, directs the Secretary of the Interior "to place on the pension-rolls the names of the surviving officers and enlisted and drafted men

of the military and naval service of the United States, who served for fourteen days in the war with Great Britain of 1812, or who were in any engagement and were honorably discharged, and the surviving widows of such officers and enlisted and drafted men," the inquiry therefore presents the question: What construction is to be given to the phrase "in the war with Great Britain"?

The ratification of the treaty of peace between the two countries took place upon the 17th of February, 1815, the day upon which Sams enlisted. Considering the difficulty of communication in the portion of the country where his service was rendered, it may fairly be inferred that his enlistment, and perhaps his term of service for at least fourteen days, took place in ignorance of such ratification.

The statute of March 9, 1878, is to be considered in connection with the act of February 14, 1871, of which it is an extension. The latter act provided for a service of sixty days by the beneficiary who is to receive advantage from its provisions, and an examination of it tends to show that the construction to be given to the phrase "in the war with Great Britain" is that the service must have been rendered previously to the ratification of the treaty of peace. In the proviso to the first section, which limits the rights of widows to those who shall have been married prior to the treaty of peace, the phrase is "prior to the treaty of peace which ter minated said war."

If this is the correct construction of the act of February 14,

Use of Patented Articles.

1871, there can be, I think, no reasonable doubt that the act of March 9, 1878, must be construed in the same way, as it is simply an extension of the benefits of the former statute to soldiers who had served for a less term, or who had actually participated in an engagement.

In an opinion rendered by my distinguished predecessor, Attorney-General Wirt, upon the statute of March 18, 1818, which was intended to provide for the benefit of officers and soldiers who had been engaged in the land or naval service of the United States in the revolutionary war, it was held by him that the phrase "who served in the war of the Revolution until the end thereof" must be considered as a service up to the time of the ratification of the treaty of peace, and that the war existed until that time. (1 Opin., 701.).

The question here presents itself in a somewhat different form, because the inquiry is whether the war can be held to have existed after the treaty of peace; but upon the principle o 1that decision, which is that the treaty of peace regularly ratified marks by distinct act the conclusion of the war, I am compelled to hold that a soldier who served for fourteen days after such ratification is not entitled to the benefit of the act. Notwithstanding it may be conceived that meritorious service might have been rendered after the ratification of the treaty of peace and in ignorance thereof, still for such service Congress has not provided, unless it be by the clause in reference to those who were actually in an engagement, which is not the case with Mr. Sams. Should such cases be presented, it is for Congress, and not for us, to consider whether the benefits of the act should be extended to them.

Very respectfully, your obedient servant,

Hon. CARL SCHURZ,

CHAS. DEVENS.

Secretary of the Interior.

USE OF PATENTED ARTICLES.

Officers of the United States, when they use articles manufactured in violation of the rights of patentees, are liable to suit therefor. Hence where articles are advertised for by the United States, and it is claimed

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by an unsuccessful bidder or other party that the successful bidder, in order to furnish the articles, must make them in violation of his patent, it is proper that the successful bidder should be required to furnish a satisfactory bond of indemnity for the security of the officer against any suit for infringement of patent by the use of the articles.

DEPARTMENT OF JUSTICE,

September 24, 1878.

SIR: The letter of General Myer, Chief Signal Officer of the Army, of date February 26, 1876, inclosed in the communication of Acting Secretary Robeson, of March 4, 1876, to the Attorney-General, presents a series of inquiries as to the practical administration of the duties of his office in connection with the subject of articles which have been patented, or are claimed to be infringements of patents, rather than questions of law.

I will, however, briefly state what I understand to be wellsettled legal principles, and, in connection therewith, make such suggestions as the letter in question seems to me to call for.

A patent is a certificate of the proper officer, the Commissioner of Patents, that the article or process patented is in his opinion useful and novel. Its validity may be contested in the proper courts by those who contend that the article or process is otherwise than useful or novel. In the case of patents which actually conflict, that patent has priority of right which has priority of date.

Officers of the United States (like private citizens), when they use articles which are made in violation of the rights of patentees, are liable to suit, and this whether the article be one actually described in a patent which has been issued, but which is invalid because a prior patent was lawfully issued for the same thing, or whether it be one which is made by a pure infringement of a lawfully granted patent.

The United States not being the subject of suit, those of its officers who use in the performance of their duties articles made in infringement of the lawful rights of patentees are subject to suit. But it has been the custom heretofore of the United States to defend such officers when they have acted in the careful performance of their duty, in the use of articles which they deemed to be necessary for the proper adminis

Subsidiary Silver Coins-Legal Tender.

tration of their respective offices. It would in such case be the duty of the United States to provide not only counsel for its officers, but also to indemnify them against any judgments which might be recovered against them, if they have acted in their respective spheres of duty carefully and judiciously. When, therefore, articles are advertised for by the United States, and it is claimed by the unsuccessful bidder that the successful bidder, to furnish such articles, must make them in violation of his lawful rights as patentee, it is proper that the successful bidder should be required to furnish sufficient security to the officers of the United States that he will protect them against any suits for the use of articles which infringe other patents. No particular form need be required for such security, but the ordinary form of a bond of indemnity will be sufficient.

The questions of General Myer relate more particularly to certain insulators which are used in the operations of his office, and which have been contracted to be furnished by one who claims to have the right to manufacture them, another claiming that such articles are made in infringement of his previous patent.

With the suggestions I have already made, it will be for General Myer to determine whether there is such reason to believe that the article furnished him is in violation of the patent that the party furnishing it should indemnify him against suit, or, even if he should be of opinion that it is in violation of the patent of another, whether the use of it is so valuable to his operations that he would be justified in incurring the claim for damages which might be made against him by the lawful patentee.

Very respectfully, your obedient servant,

Hon. GEORGE W. MCCRARY,

Secretary of War.

CHAS. DEVENS.

SUBSIDIARY SILVER COINS-LEGAL TENDER.

Section 3586 Rev. Stat. makes the subsidiary silver coins of the United States legal tender at their nominal value only where the amount of the debt, in payment of which they are offered, does not exceed five dollars.

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