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February 10, 1868.

To the Honorable,

the Secretary of War.

Sir:

The Attorney General has received your letter of this date, requesting that the United States Attorney for the District of New Mexico be instructed to defend General Getty and Surgeon McKee, of the Army, in a Chancery suit described in a letter which you enclose, dated 13 January, from Messrs. Ashurst and Elkins, solicitors for the complainants, addressed to the Surgeon General.

It is the practice of this office to express the consent of the Attorney General, by way of instruction to a District Attorney, in any case in which his services, as special counsel, have been requested by the Head of a Department, as in the present instance. It happens in this case, however, that the United States District Attorney (S. B. Elkins,) has been already retained on the other side,— a fact, which, perhaps, escaped your observation.

Under these circumstances, the Attorney General anticipates your probable preference for other counsel.

A copy of this letter, however, will be sent to District Attorney Elkins, and he will be instructed that if the United States is a party, or has an interest in the suit, it would not, after his discovery of that fact, be regular for him to engage in the case, unless upon the side of the defendants. A copy of our instructions is herewith.

Respectfully,

John M. Binckley,

Assistant Attorney General.