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authorizing the payment of the money. The fund is the principal thing to be disposed of. The draft is a mere incident. (Draft case, 1 Lawrence, Compt. Dec., 21.) Its character cannot depart from that of the principal. If the principal be exempt from lien, so must the incident or agency to reach it. Accesorium non ducit, sed sequitur suum principale. (Co. Litt., 152 a.) A Treasury draft is an instrument which may be put into circulation. It is practically an equivalent of money, when accepted in liquidation of debts. It is, by such acceptance, transmuted into money; and it would circulate as money for an indefinite period did not the statutes and policy of the Government interpose a limit. While in circulation, a lien on the draft and a lien on the money would be one and the same thing. For purposes of payment or circulation, the draft is, in effect, money, equally with bank circulation. But so long as the draft does not come into the hands of the pavee, as where it is lost or destroyed in transmission to him, or falls into the hands of a stranger who improperly detains it, it may be treated by the drawer as a nullity; and a lien on such a draft would be a lien upon nothing. There can be no lien upon moneys in the Treasury or in the hands of the disbursing officers of the Government. A bank has a general lien on all money's and funds of a depositor in its possession for the balance of the general account. (Morse, Banks and Banking, 12.) This includes a lien on any business paper or notes or bills belonging to the depositor which have been intrusted by him to the bank for collection. (Ex parte Pease, 1 Rose, 232.) But, with regard to such paper, there is something more than a lien in favor of the bank; there is an assignment to the bank itself; and the lien is on the fund accruing from such paper. Suppose the check left with the bank were not indorsed by a payee, could the latter be compelled to assign it? It might be a mere special deposit for safe custody; and on such deposits there is no lien. (Er parte Eyre, 1 Phil. Eq. R., 235; Brandao vs. Barnett, 12 Cl. & F., 809; s. C., 6 M. & G., 630; O'Connor vs. Majoribanks, + Man. & G., 435; E.x parte Hustler, 3 Mad., 117; Neponset Bank vs. Leland, 5 Met., 259; Washington Bank rs. Lewis, 22 Pick., 24; Bank of the Metropolis rs. N. E. Bank, 1 How., 231; s. C., 6 Id., 212; 17 Pet., 174; Davis vs. Browshear, 5 T. R., 188; Scott vs. Franklin, 15 East, 428; 1 Story, Contracts, sec. 181, ed. 1856; Solomons vs. Bank of England, 13 East, 135, n. a.; Anon., 1 Salk., 126, Case 5; Miller vs. Race, 1 Burr., 152.) Neither will lien attach on securities left with the banker by mistake or casualty. (Lucas vs. Dorrien, 7 Taunt., 279; Wylde vs. Radford, 33 L. J., ch. 51.)
If the lien in this case existed merely by possession of the draft and not on the fund itself, it would always be liable to be defeated; for, as has been shown, the Treasurer may, according to his convenience, pay money on a warrant without the issue of a draft. He is not bound to issue a draft at all; and, therefore, a lien, dependent on the contingency of his voluntarily choosing to issue it, would be a mere shadow. It is the fund itself which constitutes the subject of a lien, if the latter could attach on it. If a lien existed, it could not, after proper notice, be defeated either by the issuance or non-issuance, or by the loss or destruction of the draft. There can be no lien on the fund, for the possession necessary to support a lien is wanting. Until the money is paid out of the Treasury it remains in the possession of the Government,
It is said in Tyler on Usury, (775:) "It is a maxim of the common law, that a lien never takes place without an express law to authorize it. And another rule, not less general, is, 'that liens of every sort are regarded with a jealous eye, because they are prejudicial to third persons. It is for this reason that they are never implied. It is always necessary that there should be a formal obligation executed which produces a conventional lien, or an express law which creates a legal lien ; otherwise there is no lien, nor can there be by construction or implication. Liens are stricti juris."
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 embarrassed or impeded by the recognition of implied liens. (Richey's case, 1 Lawrence, Compt. Dec., 103.)
In this particular case there can be no lien, even if the attorney holding the draft has a valid claim for services; because it passed to his hands without the authority of the payee Treasury Department circular No. 6, dated January 22, 1880, referring to drafts, says: “The only right of an attorney in such draft is a lien for his reasonable fees in the prosecution of the claim out of which it issues.” (Moyers' case, 1 Lawrence, Compt. Dec., 136.) This circular does not seem to have been approved by the First Comptroller, and it cannot change the statutes.
The right to hold a draft indefinitely-for example, 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. (Rev. Stats., 306, 307, 308, 1778, 3477, 3645.) It has been shown that the issue of a duplicate draft, or else payment in money when the original draft has been lost, is a duty incumbent on the Government. There can be no obligation to withı hold indefinitely the issue of a duplicate or the making of payment, in order to aid a party claiming a lien; because there is no law which either gives the lien or commands the Treasurer to receive a notice of any claim in or concerning a Treasury draft other than that of the payee or indorsee. If there were such a law, it would embrace the equitable claims of all persons, and entail on the Government and its creditors endless litigation, with its train of trouble, delay, and expense. It was held by the Supreme Court, in United States rs. Gillis, (95 U. S., 112,) that the Court of Claims is without power to ad judicate upon merely equitable rights, (Bonner vs. U.S., 9 Wall., 156;) and, by analogy, the executive branch of the Government is without such power. 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. (U.S. vs. Morris, 10 Wheat., 301.) The Government cannot, without its consent, be made a trustee. “Nothing is more untenable than the idea that
the Government assumes the character of a trustee; an idea so abhorrent to the principles of the common law, that to make the king a trustee was to make him absolute proprietor.” (Id., 303.) The Treasurer's duty is merely to pay, by draft or money, the amount specified in the warrant to the person named therein.
For these reasons, no notice of lien or equitable claim on a draft, or money to be paid out, will be recognized by the Treasurer. No lien, in its technical sense, in favor of an attorney for a claimant, can attach to money, drafts, or papers in the possession of the Government, because of the impracticability of making it available. There can be no right without a remedy: Lex semper debit remedium; ubi jus, ibi remedium. And è converso, where there is no remedy there can be no right. “Want of right and want of remedy are reciprocal.” (Broom, Leg. Max., 191; Ashby vs. White, 2 Ld. Raym., 953; Winsmore vs. Greenbank, Willes, 577; Vaugh. R., 47, 253.) The law neither does nor requires a vain or useless thing. Hence, a lien cannot exist if there be no means by which its holder can enforce it. The only means can be (1) to hold the instrument until the payee discharges the lien by satisfying the claim of the holder, or (2) by proceeding in courts; and neither course can avail with certainty in the case of a Treasury craft.
(1.) The holding of such a draft by an attorney, when it is delivered to him by authority of the payee, will not generally be interfered with, for reasons to be stated hereafter; but the draft may nevertheless become, by force of the statutes, unavailing to him as a security for his fee. (Rev. Stats., 306, 307, 308, 1778, 3477, 3645.)
(2.) There can be no remedy by judicial proceedings for a person. claiming a lien on a Treasury draft, unless they are instituted by the Government. The latter could file a bill of interpleader and require parties to settle in court disputed questions as to the validity of the assignment of a draft, or as to the existence of a lien thereon, and, if existent, the amount requisite to discharge it. (Vermilye vs. Adams Ex. Co., 21 Wall., 138.) But the expense, delay, and inconvenience which would attend the establishment of such a practice show its impolicy. There is no law authorizing or requiring it, and hence no lien-claimant has a right to demand a resort to such proceeding.
The courts have no authority to interpose any obstacle to the pay. ment by the Treasury of a draft to the payee or his indorsee: because (1) the duty to pay is an executive function, independent of judicial action ; (2) the United States cannot be made a party to suits in courts so as to have notice of their proceedings or be bound by their decrees; (3) no executive officer of the Government can be made a party for any such purpose; and (4) it is against sound policy to permit the exercise of any such jurisdiction. (Draft case, 1 Lawrence, Compt. Dec., 11; Klink's case, Id., 242, 252; Safford & Co.'s case, Id., 262; Receiver's case, Id., 362.)
The subject of limitation and absence of jurisdiction of the courts over executive powers and duties has been discussed in the cases last cited, where it is shown that a draft cannot be attached; that neither the Government nor its officers can be garnisheed; that no remedy lies against them by injunction, (Trist vs. Child, 21 Wall., 441,) or the appointment of a receiver, or otherwise. In case of such a proceeding, what valid judgment or decree could a court render if a draft were attached? A judgment or decree that executive officers pay the draft cannot be made, because they cannot be made parties to the proceeding in court. Any order of court or judgment to such effect would be a mere brutum fulmen.
The lien of an attorney is enforced, in ordinary cases, between indiriduals, either by (1) summary proceedings, (2) defence to an action of trover, detinue, &c., or (3) relief in equity.
An attorney's lien attaches upon all papers of his client in the attorney's possession. The court will not compel an attorney to give up any writings in his possession unless the client agree to pay him his reasonable demands. (Peterborough vs. Williams, Comb., 43; Wilkins rs. Carmichael, 1 Doug., 104; Welsh vs. Hole, Id., 239; Dottin's case, Str., 547; Strong vs. Howe, Id., 621; Ex parte Deeze, 1 Atk., 228; Stanhope vs. Roberts, 2 Atk., 214; Alger vs. Hefford, 1 Taunt., 38; O'Dea vs. O'Dea, 1 Sch. & Lef., Irish Chan., 315; Mitchell vs. Oldfield, 4 T. R., .123; Read vs. Dupper, 6 Id., 361, App. 35; Randle vs. Fuller, Id., 456; Dick rs. Milligan, 2 Ves., 25; Newman vs. Payne, Ia., 199; Merryweather vs. Mellish, 13 Ves., 161; Twort vs. Dayrell, Id., 195; Taylor vs. Popham, 15 Ves., 72; Broom's case, 2 Ves., sr., 25; Griffin vs. Eyles, 1 H. Bl., 1.22; Ormerod vs. Tate. 1 East, 461; Green us. Farmer, 4 Burr., 2214; S. C., 1 W. Bl., 651; Er parte Bush, 7 Vin. Abr., 74; 2 Peter. Abr., 65, “Attorney;" 12 Id., 297, n.; Montagu, Lien, 63; Whitaker, Lien, 75; 2 Bouv. Die., “Lien;" Carver's case, 7 Ct. Cls., 499; Desmare's case, 9 II., 1.) As a general rule, there is no remely by sale, as in case of a pawn. (1 Chit. Pract., 492; Pothonier vs. Dawson, Holt's N. P., 383, d; Tyler on Usury, Pawns, and Loans, 568; Leg rs. Evans, 6 Mees. & W., 42.)
As to lien generally, see 12 Conn., 444; 8 Fla., 183; 21 N. H., 339; 27 Id., 324; 37 11., 223; 43 Id., 246; 3 Caines, 165; 10 Wend., 617; 15 Johus., 405; 1 Cow., 172; 2 Edw., 108; 2 Vt., 102; 14 Id., 247; 1 Cal., 331; 2 Id., 507; 26 111., 218; 5 La. Ann., 482; & Id., 51; 11 Id., 596.
As to summary proceedings and client's papers, see In re Dakin, 4 Hill, 42; E.x parte Ketchum, Id., 564; 7 Ct. Cls., 7; 9 Id., 1.
There are liens arising, as between natural persons, from constructive trusts, which are enforceable only in courts of equity. (22 Bour. Dic., “Lien;" 2 Story, Eq. Jur., sec. 1217; Adams, Eq., 127; 1 Parsons, Mar. Law, 106; In re Paschal, 10 Wall., 492.)
The relation existing between a person employed to prosecute a claim before Congress, or an executive department, and his employer is not that of attorney and client, as in court. The judge can punish an attorney for want of fidelity in a matter cognizable by the court, (In re Paschal, 10 Wall., 183; Barry vs. Whitney, 3 Sandf., 696;) but no court exercises supervisory jurisdiction over the conduct of an agent performing services before Congress or an executive department. Courts can, in some cases by summary proceedings, protect the rights of attorney; but neither Congress nor the executive departments can afford such protection by any proceeding having the force of an order or judgment of court. (Hayburn's case, 2 Dall., 409.) The lien of an attorney has grown up by the usage and practice of courts, and it is by courts only that it can be enforced. It is a part of the stupendous work of judicial legislation. The executive departments are not clothed with the power to make liens effectual, or to ascertain the extent of a lien and order payment in discharge thereof, or to exercise other jurisdiction of like character. This power is judicial, not executive. The judicial attributes of lien in favor of attorneys, arising from services in judicial proceedings, cannot spring from services relating to executive functions.