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extending as near to the date of the grant as possible, may be presented; but before presenting this secondary evidence the State agent shonld tile his own aftidavit setting forth fully and satisfactorily the reasons for the failure to present the testimony of the first-mentioned class of witnesses, and also setting forth that the witnesses whose testimony he offers have the best knowledge of the land extending nearest to September 20, 1850, of any that can be obtained.
The testimony of each witness should not only show that at the time when he first knew the land the greater part of each forty-acre tract, or other smallest legal subdivision, was swamp or overflowed within the meaning of the grant, but it must be full and explicit on the following points :
The cause of the swampy character or overflow, with the time of the year and the length of time such was the coudition of the land, and how much or what proportion of the tract was thus rendered untit for cultivation in its natural condition; The nature and extent of the means necessary to reclaim the land;
The kinds of timber, plants, shrubs, grasses, &c., growing on the land, and whether or not plowing and the removal of timber or other natural growth would not have caused the land to become dry enough for cultivation without ditching, draining, or protection from overtlow;
The names of water-courses, lakes, &c., on or near the land, with a description of the size of the same, and, where not on the tract, the direction and distance from it; The general character of adjacent and surrounding lands;
The present condition of the land, and in case any changes have taken place within the knowledge pf the witnesses the nature and cause of such changes, with a full description of such artiticial means of reclamation as have had any effect on the character of the land, and all other facts known to the witnesses which may tend to show the true condition of the land.
The witnesses should be required to state facts, not opinions, and their testimony should be as full and complete as to every fact within their knowledge as if it were needed to establish the character of the land to the satisfaction of a judge or jury.
Er parte affidavits will not be considered, and all testimony must be taken in the presence of the agent of this office.
Depositions may be taken before any officer authorized by law to administer oaths : provided, that if taken before an officer other than the clerk of a court of record having a seal, the official character of such otticer shall be established by the certifi. cate of the clerk of the proper court of record under the official seal thereof.
In all cases the disinterestedness of the witnesses must be established under oath, and the credibility of the witnesses must be certified to by the officer taking the depositions, or established by the oath of witnesses to whose credibility le certifies.
In cases where the agent of this office shall be satistied, from the previous examination in the field, that any tract or tracts are of the character contemplated by the swamp grant, the testimony of two witnesses as above mentioned will be seemed suficient proof; but in cases where said agent shall not be so satisfied from the previous examination in the field, he will take measures to secure such additional evidence as may be necessary to fully determine the character of the land, by obtaining the testimony of the owner or occupant of the land, or, if those persons have testitied, other well-informed persons residing in the vicinity of the land, allowing the agent of the State full opportunity to cross-examine such witnesses should be desire to
If the agent of this office shall be in doubt as to the amount of a particular tract which is swampy or overflowed, he will have a survey and plat made of the tract by a competent surveyor, in order that the exact amount of swampy or overtlowed land in the tract may be shown.
After the testimony is taken the agent will make a full report to this office upon each of the tracts upon which testimony is taken, together with his opinion as to the real character of each of said tracts.
These regulations will supersede all former regulations; but cases where proof has heretofore been taken and filed in this office will be examined and determined upon such proof, if it is found to be in strict accordance with the regulations existing at the time of taking the same.
J. A. WILLIAMSON,
Commissioner. DEPARTMENT OF THE INTERIOR,
August 20, 1878.
IN THE MATTER OF THE AUTHORITY OF THE TREASURER
OF THE UNITED STATES TO ISSUE DUPLICATE OF DRAFT WITHHELD BY FORMER ATTORNEY FROM PAYEE.-DI C ESNOLA'S CASE.
1. Disbursing officers, who are such merely, (not including the Treasurer of the
United States,) pay dues from the Government either in money or by checks. The authority of the Treasurer, in the absence of express statutory provision, to issue, in proper cases and as a means of executing the duties of his office, duplicates of lost drafts in order to make payment of claims for which warrants have issued, is fully supported both by inference of law and by com
mercial usage. 2. The Government, in making payments, adopts many usages of business men and
banking-houses; and the principles underlying and regulating such usages are recognized as applicable to governmental transactions, except in so far as they may be in conflict with public policy or the sovereiguty of the national power,
or as they are controlled by statutory enactments. 3. If a draft be lost or rendered inaccessible to the rightful owner without his fault,
and especially if the loss or inaccessibility has been caused by an officer of the Treasury having charge of the direction, issuance, or delivery of the same, the duty, nevertheless, remains to make payment of the annount for which the draft
was issned. 4. Executive officers, as agents of the Government, will, in proper cases, do that
which, in similar circumstances, courts would compel private parties to do. 5. Section 3646 of the Revised Statutes simply regulates and limits an authority to
issue duplicates of lost checks, which existed before there was any statutory provision on the subject. Similarly, as to drafts wrongfully withheld, e. g., by former attorneys from the payees thereof, the authority also existed to issue
duplicates, or to make payments without them. 6. Public policy puts all Government checks and drafts on the footing of paper not
designed to circulate as currency or a medium of exchange, but to be consid
ered as overdue after the earliest practicable period or date of presentment. 7. An indorsee of a Government check or draft payable to order is, if he does not
receive it within a reasonable time after its date, chargeable with notice of all
objections to its payment. 8. The drawer of a check or draft is released from liability only when delay in pre
senting it has resulted in loss to him. 9. A bond of idemnity, the form of which is prescribed by the Treasury Depart
ment, is required before a duplicate draft will be delivered; and evidence substantially as in applications for duplicates of lost Government bonds is also
required. 10. The Treasurer may, where a draft is withheld by a former agent or attorney from
the payee and the Treasurer, and thus rendered inaccessible, issue a duplicate draft, either for his own or the payee's convenience; or he may pay the money directly to the latter, taking a receipt therefor, indorsed on the warrant.
11. When there is no lien on the fund or money in the Treasury for the payment of
a claim, there can be no lien on the draft issued for payment; and there can be
no lien on the fund, because the possession necessary to support it is wanting. 12. The principle of public policy which ascribes impeccability to the Government,
and exempts it from statutes of limitation, interest-statutes, suit, and the rules governing persons, applies to the instrumentalities by which the fiscal operations of the Government are carried on; and these cannot be embarassed
or impeded by the recognition of implied liens. 13. The right to hold a draft indefinitely, e. g., as a means of compelling the payee to
make compensation for services, cannot exist; because such retention of the draft would be in contravention of the letter, purpose, and policy of the
law. 14. The Court of Claims is without power to adjudicate upon merely equitable
rights; and, by analogy, the executive branch of the Government is without
15. The Treasurer cannot be required to pay money in any other mode than that
directed by law. The Government reserves a sovereign control over the
money and all its incidents and instrumentalities until it is paid in such mode. 16. The Treasurer's duty is merely to pay, hy draft or money, the amount specified
in the warrant to the person named therein; and no notice of lien or equitable
claim on the draft or money will be recognized by him. 17. No lien, in its technical sense, in favor of a claimant's attorney, can attach to
money, drafts, or papers in the possession of the Government, because of the
impracticability of making it available. 18. The courts have no authority to interpose any obstacle to the payment by the
Treasury of a draft to the payee or his indorsee. 19. Consideration of the subject of limitation and absence of jurisdiction of the
courts over executive powers and duties; and of attorney's lien in ordinary
cases between individuals, and the means of enforcing it. 20. The lien of an attorney has grown up by the usage and practice of courts, in
which only it can be enforced. Executive departments are not clothed with power to make it effcctual, or to ascertain its extent, &c.; such power being
judicial, not executive. 21. The judicial attributes of lien in favor of attorneys, arising from services in
judicial proceedings, cannot spring from services relating to executive functions. An attorney who has possession of a Treasury draft has no technical lien thereon for services rendered in procuring it; and, as between the Gov
ernment and the payec, he has no remedy either at law or in equity. 22. When a claim upon the United States is assigned conformably to the provisions
of section 3477 of the Revised Statutes, the rights of the assignee, to the full extent of the assignment, will be recognized and protected by the Treasury Department.
A private act of Congress, approved March 2, 1831, " for the relief of Louis P. Di Cesnola, late consul at Cyprus," directs the Secretary of
the Treasury to pay him $5,500, in reinbursement of the official expenses of his consulate. (House Reps., Nos. 202 and 279, 20 Sess. 16th Congress, February 11 and February 20, 1880.) On March 12, 1881, au account in favor of Di Cesnola was stated by the Fifth Auditor, and a balance certified by the First Comptroller, on which a warrant, No. 519, on the Treasurer of the United States, authorizing payment in favor of Di Cesnola, was issued. (Rev. Stats., 218.) On this warrant, for the purpose of making payment, the Treasurer issued a draft, as follows:
“Draft, No. B. 5068. On Diplomatic Warrant.
No. 519. “ TREASURY OF THE UNITED STATES,
“ Washington, D. C., March 12, 1881. • Pay to the order of Louis P. Di Cesnola, late consul, five thousand five hundred dollars. “Registered March 12, 1881.
"W. P. TITCOMB,
" Assistant Register of the Treasury. 66 To TREASURER U. S.,
"JAMES GILFILLAX, ** $5,500 Washington, D. C. 66 Treasurer of the United States."
The draft was delivered by the Treasurer to a party who claimed to be the agent and attorney of Di Cesnola, and authorized as such to receive it, and who now refuses to deliver it either to Di Cesnola or to the Treasurer of the United States. This party had been the attorney of Di Cesnola before a committee of Congress at a session previous to that at which the relief bill was passed; and a letter from Di Cesnola to him, on file in the office of the Fifth Auditor, referred to him as attorney in the inatter pending in Congress. This letter was supposed by the Auditor to authorize the delivery of the draft by the Treasurer to the attorney, though it did not in terms so declare. There was no formal power of attorney. It seems that the attorney was employed and fully paid for his services so rendered, though he insists that his services were continued, and that other compensation is due. March 6, 1881, a letter was written, on behalf of Di Cesnola, to the First Comptroller, saying: “I am advised by General Di Cesnola, whose. bill I championed, that some one makes claim on it. Whoever it is, don't allow anything to be done till the real beneficiary makes a new power of attorney or advises you."
This was by the proper clerk referred to the chief of the division of miscellaneous accounts in the First Comptroller's office, through which division all the papers would have passed, if the claim had been, as supposed, under the miscellaneous-appropriation act; but as it related
to the diplomatic service, it passed through another division, and so the direction given as to the delivery of the draft on the statement of the Fifth Auditor, was left unchanged and carried into the warrant.
On March 28, 1881, Di Cesnola applied to the Treasurer of the United States for the issue of a duplicate of the draft referred to, (Rev. Stats., 3616,) and the application is by that officer referred to the First Comptroller for decision as to the respective rights thereunder.
Nathaniel Wilson appeared for Di Cesnola and submitted an argument, an abstract of which is as follows: The party to whom the draft was delivered had no “letter of attorney," as required by Department circular No. 130, of October 10, 1876. He did not prosecute the claim before the Department. The circular only relates to attorneys in cases adjudicated in this Department.” He only had a letter in relation to the claim before Congress, addressed to him by Di Cesnola, giving no anthority to receive a draft or to represent the latter in the Department. It is claimed that notice by letter was sent on behalf of Di Cesnola to the office of the First Comptroller directing that the draft should not be delivered to this party.
If he even has a claim for services, he can have no lien on the draft, because the draft was not delivered to him with the express or implied assent of the party against whom it is asserted.” (Story on Agency, sec. 361; Wharton, Agency, sec. 823; McPherson is. Cox, 6 Otto, 401.)
The services rendered could not give a lien. (Trist vs. Child, 21 Wall, 441.)
The evidence also shows he has been paid in full.
Hon. William Penn Clarke, for the attorney holding the draft, made an argument and presented a brief maintaining that the attorney had a lien on the draft for services, and that the rights in controversy could be settled only by the courts, as the United States has no interest therein; that the application for a duplicate draft is without precedent and without warrant in law, since the original is not lost nor destroyed; that the issuance of the draft is payment in law, and the power of the Treasury officials is functus officio. (Rev. Stats., 305.) To issue another draft would be double payment. (Rev. Stats., 3616, 3647.)
DECISION BY WILLIAM LAWRENCE, First Comptroller:
The First Comptroller is required to decide the questions involved in this case because, in the settlement of the accounts of the Treasurer of the United States, he must decide all questions affecting the validity of the vouchers produced by the Treasurer in evidence of payment of warrants. (Rev. Stats. 305, 311.)
The usual practice as to the delivery of drafts is this: If there be evidence on file of the authority of an attorney or other person to receive a draft, the Auditor, in his statement of the account, makes a memorandum thereon, importing that the draft is to be sent to the care of such attorney. A copy of the Auditor's statement accompanies the H. Ex. Doc. 219.