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by due course of mail reach its destination, and be presented for payment in the ordinary course of business; but a draft issued and payable at Washington, intended, as in the case of Di Cesnola, for a payee in • New York City, would be considered overdue in less time. In the present case, it is sufficient to say that the draft issued to Di Cesnola on the 12th of March may now be fairly considered overdue. A party who would now take it by indorsement would undoubtedly be chargeable with all objections to its payment, so far as any claim on the Government is concerned. This is clear upon the authorities. (Clark cs. National Metropolitan Bank, 2 MacArthur, Dist. Col. R., 249) ; Morse on Banks and Banking, 2d el., 256, 200, 369; 2 Daniel, Neg. Inst., secs. 1572, 1.588; 2 Parsons, Notes and Bills, 71, 106; Down is. Halling, 1 Barn. & Cres., 330; Rothschild vs. Corney, 9 II., 389, 391; Ames is. Meriam, 98 Mass., 294; Whistler is. Forster, 14 C. B., N. S., 218; Ford vs. McClug, 5 W. Va., 156; Little vs. Phenix Bank, 2 Hill, 429; Daniel 18. Kyle, 1 Kelly, 304; 5 Ga., 304; Harbeck vs. Craft, 4 Duer, 129; St. John (s. Homans, 8 Mo., 382; Conroy 18. Warren, 3 Johns. Cas., 2.59.)
The law of the place where a bank-check or draft is payable governs not only as to time, but as to the mode of presentment for payment. (Bowen vs. Newell, 5 Sandf., 326; s. C., 5 Duer, 581; 4 Seld., 190; 3 Kern., 290.) A bank-check payable ten days after date is an inland bill of exchange if payable in the State. (Bradley vs. Harrington, J Harr., Del., 305.) A check upon a bank is, until accepted, merely an order upon the bank. The latter is not liable upon it, and it may be revoked. (Schneider is. Irving Bank, 1 Daly, 500; 30 How. Pr., 190. For the rule as to reasonable time, see Bank of Columbia vs. Lawrence, 1 Pet., 583; Bank of Alexandria rs. Swann, 9 Pet., 45, 46; Lenox rs. Roberts, 2 Wheat., 373; Hartford Bank vs. Stedman, 3 Com., 489.) It has been said that if the bank on which the check is drawn remains solvent
the drawer will remain bound after presentment and refusal of payment, although many months, or even years, have elapsed since the check was drawn.” (2 Daniel, Neg. Inst., sec. 1589; Bell vs. Alexander, 21 Grat., 6; Emery us. Hobson, 62 Me., 578; Byles on Bills, Sharswood's ed., 93, (20; Stewart s. Smith, 17 Ohio St., 86.)
The Government, the drawee of the draft to Di Cesuola, has not become insolvent, and it could not, on the ground of insolvency, claim exemption from liability. A party may draw a check to his own order, and on himself, and in such case he never can avoid liability on the ground that he has become insolvent since the check was drawn. A drawer of a check or draft is only released from liability when the delay
in presenting it has resulted in loss to him. Having the right to give a duplicate check in a proper case, the drawer would sustain a loss if the duplicate were paid, and he could nevertheless be held liable for the payment of the overdue original taken by an indorsee. But he would be exempt from liability for the payment of the overdne original, if the holder were guilty of laches in not making due presentment. If required to pay a second time, the negligence of the holder would result in loss to the drawer, who is guilty of no laches, and who “is entitled to such presentment
as will save him from loss." (2 Daniel, Neg. Inst., sec. 1587.)
A bond of indemnity to the United States * is required before a duplicate draft will be delivered; and the form of such bond is prescribed by the Department of the Treasury. (Moyer's case, 1 Lawrence, Compt. Dec., 131.) Evidence is also required substantially as in applications for duplicates of lost Government bonds.t
It is not necessary that a duplicate draft should be issued to Di Cesnola. The Treasurer may issue such duplicate, either for his own or Di Cesnola's convenience; or he may pay the money directly to the latter and require his receipt therefor indorsed on the warrant; which lattercourse may be advisable in this case. The statute provides that the Treasurer “shall take receipts for all moneys paid by him.” (Rev. Stats., 305.) If payment in money be made directly to Di Cesnola, 10 court will be interrupted in its business with a profitless application for an injunction (for the granting of which there is no authority) to restrain the claimant from indorsing the draft or receiving payment thereof.
II.-Even though the attorney to whom the draft in favor of Di Cesnola was delivered have a claim against the latter for services, he has (1) no lien on the draft which will prevent the issue of a duplicate, and he can (2) in no way assert a claim against it.
(1.) As to the lien, it must be apparent that there can be no technical lien of an attorney or agent on such draft as that now in question which can prevent the issue of a duplicate, because it is, in effect, prohibited by law.
The Revised Statutes provide as follows:
“SEC. 3477. 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, shall be 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. Such transfers, assignments, and powers of attorney, inust recite the warrant for payment, and must be acknowledged by the person making them, before an oflicer having authority to take acknowledgments of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer, at the time of the acknowledgment, read and fully explained the transfer, assignment, or warrant of attorney to the person acknowledging the same.”
*For a form proper to this case, see post, 164.
As to bonds, see Rev. Stats., secs. 3702-3705; and “regulations” as to Government bonds, for which see 1 Lawrence, Compt. Dec., Appendix, p. 560.
(As to the mode of taking acknowledgments, see section 1778.) The Supreme Court has helil that the words of this provision “embrace every claim against the United States, however arising, of whatever nature it may be, and wherever and whenever presented.” (U.S. rs. Gillis, 95 U. S., 413; Spofford is. Kirk, 97 U.S., 488; McKnight rs. V. S., 98 C. S., 185; S. C., 13 Ct. Cls., 312; Stow vs. U. S., 5 Ct. Cls., 362; Taylor's case, 11 Op. Att.-Gen., 520; Assignment case, 16 Op., 261; Satford & Co.'s case, 1 Lawrence, Compt. Dec., 287.)
One object of the statute is to prevent any delay or obstruction in the payment of claims to the original claimants, and another is to save executive officers from the necessity of deciding controverted questions of liens or assignments. Long before the enactment of this statute, it had been held by the Supreme Court (U. S. vs. Robeson, 9 Pet., 325,) that, in the absence of a law of Congress authorizing the assignment of claims on the United States, the Treasury Department could not give the assignment such a sanction as would vest in the assignee a legal right.
If it be said that "a lien is neither a jus ad rem nor a jus in re, but a simple right of retainer,” (Meany vs. Head, 1 Mason, C. C., 319,) and hence no assignment of any part of the claim or fund, the answer is obvious, that a lien arises by contract, express or implied. In this case a lien is claimed to exist by implication from the contract of service. It may so arise as between attorney and client in cases not affecting the Government; but the purpose of the statute above quoted is to prevent all contracts, made prior to the issuing of a warrant, from diverting in any way the payment of money from the claimants. As no assignment can be made of a claim, or of the money allowed thereon, until after a warrant for payment issues, and then only by compliance with prescribed formalities, it is difficult to perceive, in view of the purpose of the statute, how any right to a lien on the draft can arise prior to the issuing of the warrant; and it is not pretended in this case that any right to a lien arose after its issue. 66 What cannot
be done directly from defect of power cannot be done indirectly." (Wayman is. Southard, 10 Wheat., 50.)
If a lien gives a right in equity enforceable by foreclosure or other proceeding in rem, this would, in effect, be such an assignment of an interest as the statute in express teris prohibits. (Bristol's case, 11 Op. Att.-Gen., 7; Brooke's case, 12 Op., 216.)
(2.) If a lien may exist, with a right to hold a draft against the payee until a claim for fees be paid by him, such right "may be used as a defence to any action for the recovery of the property.” (Story, Agency, sec. 371; 3 Chit. Com. and Manuf., 551; Meany vs. Head, I Mason, C. C., 319; The Ship Packet, 3 11., 334; Green vs. Farmer, 4 Burr., 2218; 2 Liv., Agency, 103, 104, ed. 1818; Paley, Agency, by Lloyd, 1:31; Scott vs. Franklin, 15 East, 428.) Litigation would involve delay in the payment of drafts, and might impecle the operations of the Treasury
Section 306 requires all moneys, against which drafts are drawn, to be covered into the Treasury, after the expiration of three years, " to the credit of the parties in whose favor such
drafts were respectively issued or to the persons who are entitled to receive pay therefor.” Section 308 provides that the payee, or any bona fide holder of such draft, on presenting it after such period of three years, shall be entitled to have it paid by the settlement of an account, and the issuing of a warrant in his favor, according to the practice in other cases of authorized and liquidated claims against the United States. (See also sections 307 and 3645.) The whole policy of these sections will be defeated if the ordinary incidents of a technical lien can be lield to apply to a Treasury draft. It is eviilent that Congress never contemplated the attaching of a technical lien to any of the instrumentalities by which the business of the Government is transacted; it has, by necessary inference, excluded and exempted them therefrom.
The sections cited render null and void any agreement for the transfer or assignment of an interest in a claim, or in the fund for its pret ment, whether as security for compensation or otherwise, before the issuing of a warrant. The maxim may well apply, that no man ought to be permitted to allege his own misconduct or violation of law. (Davison vs. Franklin, 1 B. & Ad., 142; Flight rs. Salter, Id., 673; 12 Op. Att.-Gen., 216.)
In Trist rs. Child, (21 Wall., 441,) it appears that Trist, having a claim against the United States, which the Executive Department had not recognized, made an agreement with Child whereby the latter was to prosecute it before Congress, and receive for bis services twenty-five per cent. of any sum authorized to be paid by act of Congress. The
act of April 20, 1870, appropriated $14,559 to pay the claim. Child demanded the stipulated compensation for his services, and Trist refused payment. The Treasury Department hereon suspended payment of the claim. Child filed a bill in equity, in the proper court in the District of Columbia, and a decree was made that Trist should pay Child $3,639, and that he be enjoined from receiving, at the Treasury, any of the money appropriated until this sum was paid. On appeal in the Supreme Court of the United States, Mr. Justice Swayne, delivering the opinion of the court, said:
"The bill proceeds upon the grounds of the validity of the original contract, and a consequent lien in favor of the complainant upon the fund appropriated. * Was there, in any view of the case, a lien ?
" It is well settled that an order to pay a debt out of a particular fund belonging to the debtor gives to the creditor a specitic equitable lien upon the fund, and binds it in the hands of the drawee. (Yates rs. Groves, 1 Vesey, jr., 280; Lett vs. Morris, 4 Simons, 607; Bradley is. Root, 5 Paige, 632; 2 Story's Equity, sec. 1017.) A part of the particular fund may be assigned by an order, and the payee may enforce payment of the amount against the drawee. (Field vs. The Mayor, 3 Selden, 179.) But a mere agreement to pay out of such fund is not sutticient. Something more is necessary. There must be an appropriation of the fund pro tanto, either by giving an order or by transferring it otherwise in such a manner that the holder is authorized to pay the amount directly to the creditor without the further intervention of the debtor. (Wright rs. Ellison, 1 Wall., 16; Iloyt vs. Story, 3 Barb., 261; Malcolm is. Scott, 3 llare, 39; Rogers vs. Hosack, 18 Wend., 319.)
- Viewing the subject in the light of these authorities, we are brought to the conclusion that the appellee had no lien upon the fund here in question. The understanding between
Child and Trist was a personal agreement. It could in no wise produce the effect insisted upon. For a breach of the agreement, the remedy was at law, not in equity, and the detendant had a constitutional right to a trial by jury. (Wright rs. Ellison, 1 Wall., 16.) If there was no lien, there was no jurisdiction in equity.
“There is another consideration fatally adverse to the claim of a lien. The first section of the act of Congress of February 26, 1853, (Rev. Stats., 3477, declares that all transfers of any part of any claim against the United States, 'or of any inierest therein, whether absolute or conditional, shall be absolutely mall and void, wless executed in the presence of at least two attesting witnesses, after the allowance of such claim, the ascertainment of the amout due, and the issuing of a warrant therefor. That the claim set up in the bill to a specific part of the money appropriated is within this statute is too clear to acīmit of doubt. It would be a waste of time to discuss the subject.”
The bill was dismissed. (See Stow's case, 5 Ct. Cls., 362; Carver's case, 7 Id., 499; In re Paschal, 10 Wall., 496.)
If there can be no lien on the fund—the money-it is difficult to perceive how there can be a lien on the draft drawn to pay a warrant