Cutting or Removal of Timber. "invested," in order to ascertain the value of the business in the one case upon which an excise is laid, and the value of the franchise in the other which is subjected to a tax. The fact appears by the communications inclosed in your letter that at certain times the bonds in question have been sold in the market below par, although of late years they have been above par. The amount invested properly in a thing is the amount paid for that thing, although its actual value may be greater or less than such amount. In the computation under these two sections it seems to me that it was intended to reach the amount which had been withdrawn from the former active capital to be placed in comparatively permanent investment of United States bonds. In computing the tax which is to be paid either by the banks or persons engaged in banking under section 3408, or the amount imposed by section 5214, it is proper to determine the amount which such persons or corporations actually paid for such bonds. I am therefore of opinion that the amount so invested is to be ascertained by taking the price paid for the United States bonds. Within the price, I should add, accrued interest should not be calculated, as that is a mere temporary investment which is replaced as soon as the interest becomes actually paid. Very respectfully, your obedient servant, Hon. JOHN SHERMAN, Secretary of the Treasury. CHAS. DEVENS. CUTTING OR REMOVAL OF TIMBER. Sections 4 and 5 of the act of June 3, 1878, chap. 151, entitled "An act for the sale of timber lands in the States of California, Oregon, Nevada, and in Washington Territory," construed in connection with section 2461 Rev. Stat., punishing the cutting or removal of timber growing on the public lands. DEPARTMENT OF JUSTICE, SIR: I have carefully considered paragraph 1 of the "Rules and Regulations for the Protection of Timber," &c., trans Cutting or Removal of Timber. mitted with your letter of September 24, in connection with Rev. Stat., sec. 2461, and the two acts of June 3, 1878. Section 4 of the longer of these two acts merely singles out from the offenses described in section 2461 that of cutting or removing timber "with intent to export or dispose of it," and affixes to it a new and different penalty. Section 5 simply allows all persons prosecuted for the cutting or removal of timber, "except those who cut or removed with intent to export," to relieve themselves from the penalties prescribed in section 2461 by the payment at the rate of $2.50 an acre of the land on which the trespasses were committed. The effect of this provision is to release offenders from the penalties incurred for offenses committed under the former law prior to the passage of the new act, on their compliance with the specified conditions; those who cut or removed "with intent to export" being expressly excluded from the benefit of the provision. I see nothing in the language of the provision that limits its operation to prosecutions actually pending when the act was passed. The effect of the proviso in section 4, as also of the other act of the same date, is simply to exempt certain specified cases from the operation of the provisions of section 2461. It is a necessary implication from these special provisions that the former law continues in force in respect to all cases to which they do not apply. I am, therefore, of opinion that paragraph 1 of the rules and regulations transmitted is in accordance with law. The United States attorney for the district of California has been instructed to be governed in his official action in regard to timber cases by the views expressed in this letter, a copy of which has been forwarded to him. Very respectfully, Hon. CARL SCHURZ, CHAS. DEVENS. Secretary of the Interior. Claim of Fabbri & Chauncey. CLAIM OF FABBRI & CHAUNCEY. An approved account or voucher for transportation performed for the Navy Department by F. & C., contractors, was issued by the chief of the Bureau of Steam Engineering in favor of and delivered to H. & Son, who were brokers for F. & C. The latter claim that the amount appropriated by the act of June 14, 1878, chap. 191, to pay for the transportation should be paid to them, and not to H. & Son. Held, that the account or voucher issued as aforesaid is not a negotiable paper; that a transfer or assignment thereof would be void under section 3477 Rev. Stat.; that the appropriation was made for the purpose of paying F. & C., and not any alleged claim of H. & Son; and that the Navy Department may treat such approved account or voucher as a nullity, and reissue an approved account in favor of F. & C. and transmit it to them directly. DEPARTMENT OF JUSTICE, October 23, 1878. SIR: Your letter of the 19th instant calls my attention to a communication from the firm of Fabbri. & Chauncey, of New York, in which they claim, as contractors for whom J. D. Hurlbut & Son were brokers, that the amount appropriated by Congress June 14, 1878, to pay for carrying freight for the Navy Department, should be paid to them, and not to said Hurlbut & Son, to whom (as they claim) the vouchers issued by the chief of the Bureau of Steam Engineering have been erroneously sent. You request that I will advise you whether an approved account or voucher issued in favor of J. D. Hurlbut & Son is or is not negotiable, and if the pay officer in New York, or other agent of the government to whom such voucher may be presented, is required by law to pay the amount of such voucher to the party to whom it has been assigned by the said brokers. Further, whether the Department, in view of the language of the appropriation act, can legally treat that voucher as void, and recognize only the firm of Fabbri & Chauncey by reissuing approved accounts to them, and not to or through the said Hurlbut & Son. In reply I would say that such approved account or voucher is not in any proper sense a negotiable paper, and whoever should purchase it would, under all circumstances, take it subject to all the equities that might exist between the Government and the contractor. The Government would not be Claim of Fabbri & Chauncey. required by law to pay the amount of such voucher to the party to whom it had been assigned by the brokers if it had itself an equitable claim against the brokers. Nor, if it became satisfied that the account was erroneously approved, would it be the duty of the Government to pay it. This would be the law independently of any statute. But section 3477 of the Revised Statutes makes all transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof, "absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof.” This is an act of universal application, and covers all claims against the United States in every tribunal in which they may be asserted. (United States v. Gillis, 95 U. S. Rep., 407.) Perhaps an answer to your second inquiry is unnecessary. I however add that, in view of the language of the appropriation act, the Department would be fully justified in recognizing only the firm of Fabbri & Chauncey, assuming always that as a matter of fact those were the parties who actually contracted with the United States, by reissuing approved accounts to them, which need not come through Hurlbut & Son, their brokers. The language of the statute of June 14, 1878, in reference to this account, indicates quite clearly that the only reason for the mention of the name of Hurlbut & Son was for the purpose simply of identifying the claim, or a portion of the claim, which Fabbri & Chauncey had against the United States, and that the appropriation was made for the purpose of paying the claim of Fabbri & Chauncey, and not any alleged claim of Hurlbut & Son. Very respectfully, your obedient servant, Hon. R. W. THOMPSON, Secretary of the Navy. Payment by Mistake. PAYMENT BY MISTAKE. A claim was presented to the Southern Claims Commissioners, under the act of March 3, 1871, chap. 116, the claimant describing himself in his application as "Alexander Anderson, of Augusta County, Virginia." The commissioners made favorable report thereon, finding the amount due claimant to be $175. Their report was adopted by Congress, and by act of March 3, 1873, chap. 339, the Secretary of the Treasury was authorized to pay $175, "out of any moneys in the Treasury not otherwise appropriated," to "Alexander Anderson, of Virginia." In the meantime a claim had also been presented to the commissioners in the name of Alexander Anderson, of Amelia County, Virginia, which was not allowed. The latter claimant, in March, 1873, gave F. a power of attorney to receive for him the $175 allowed by said act to "Alexander Anderson, of Virginia," describing himself as "Alexander Anderson, of Amelia Court-House, of the county of Amelia, in the State of Virginia." The money was paid to F. on filing said power, who had acted in good faith, and was not informed of the mistake until after he turned over the money to his principal. Held, (1) that F. is under no legal liability for the money; (2) that his principal is liable, either at the suit of the rightful claimant or of the United States; (3) that the officer of the Treasury, through whose negligence the mistake was made, is legally chargeable with the amount, to be passed to his credit on the recovery of the money; (4) the rightful claimant does not, in consequence of the mistake, lose his right to be paid out of any money remaining in the Treasury not otherwise appropriated; (5) a second appropriation warrant may legally issue to again place the amount due the rightful claimant to the credit of the Secretary of War, that he may draw a new requisition on which a new warrant can issue in payment of the claim DEPARTMENT OF JUSTICE, October 23, 1878. SIR: I have carefully considered the questions submitted to me in your letter of October 12, touching the payment by mistake to Alexander Anderson, of Amelia County, Virginia, of $175, which rightfully belonged to Alexander Anderson, of Augusta County, Virginia. The papers transmitted to me state or concede the following facts: Alexander Anderson, of Augusta County, Virginia, filed his claim under the act of March 3, 1871 (16 Stat., 524), appointing commissioners to examine and report to Congress upon claims of loyal citizens for supplies furnished to the Army during the rebellion, describing himself in his applica |