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It must, therefore, be held that an attorney who has possession of a Treasury draft has no technical lien thereon for services rendered in procuring it; and that, as between the Government and the payee, he has no remedy either at law or in equity.
III.—The RIGHTS of attorneys and agents who prosecute claims against the Government are not in any way impaired by the adherence of the Treasury Department to these principles. So far as it may have jurisdiction, and the exercise of such jurisdiction shall not be inconsistent with public policy and prudent administration, the Department will steadily recognize and protect those rights.
It is the usage of the Treasury Department, on the issue of a draft for the payment of a claim, to deliver it, on the written authority of the claimant, to the attorney named in that authority; and when so delivered no duplicate will, as a general rule, be issued, nor will payment be made other than of such draft. The attorney's right against the client, whether it be denominated a lien or otherwise, is not infringed by this usage; under which, the Department may safely leave the parties to their remedies in the courts. But where, as in this case, there is a contest as to the right of the attorney to receive the draft, or where the authority is revoked, or there is an improper delivery of the draft, or the evidence is insufficient or unsatisfactory as to the merits of the controversy, the safe and proper course on the part of the Treasurer will be to decline to deliver the draft to the attorney, and to deal with the claimant directly. In the event of the assignment of the clain in accordance with the provision applicable to such assignments in section 3477 of the Revised Statutes, the rights of the assignee, to the full extent of the assignment, will be recognized and protected. (Carver's case, 7 Ct. Cls., 499; In re Paschal, 10 Wall., 496; Trist rs. Child, 21 I I., 441.)
Hereafter, in order to avoid controversies, to save expense to parties in interest, and to prevent injustice to the Government, a regulation already eristing will be enforced, and the authority of an agent to receive a draft will, er abundanti cautela, as a general rule, except "in cases certified for payment by the Court of Claims, or by a commission created by Congress,” be required in the form of a power of attorney, * executed with the usual evidences of authentication required for powers to make indorsements of drafts, and giving such pertinent description of the draft, or the claim on which it is founded, as may be necessary to identify it. (Rev. Stats., 1778, 3477; Moyer's case, 1 Lawrence, Compt. Dec., 126; Satford & Co.'s case, Id., 287, 293.)
* The form may be substantially as on page 165, post. H. Ex. Doc. 219-11
While it is no part of the duty of executive officers to attend to the collection of fees for services of attorneys, it is, at the same time, no part of their duty to afford facilities for defrauding them. Therefore, when it is clearly shown that a claimant designs to defraud his attorney, there is a discretion which may be exercised to pay claimants in money at the Treasury or a depository, upon notice of the time and place of payment given to the attorney, who, after such payment, can pursue any proper remedy authorized by law in favor of creditors. (Safford & Co.'s case, 1 Lawrence, Compt. Dec., 293.) Justice is advantageous both to attorney and client. (Ex parte Bryant, 1 Mad., 52; sc., 1 Ves. & B., 211; Green vs. Farmer, 1 W. Black., 651; S. C., 4 Burr. 2214.) The Government should be so administered that attorneys will not be obliged to charge honest clients for the risk of loss from clients who are not so.
When a draft has been, as in this case, inadvertently delivered by the Treasurer to one as attorney who asserts a claim for services, he will generally be required to surrender it to the Treasurer, as a condition precedent to entitle him to notice of the time and place fixed for pay. ment of the claim. If an attorney to whom a draft may have been delivered should, even under the authority of a power of attorney, hold it not merely until payment for services in relation thereto, but as security for advances of money, or otherwise vexatiously and in violation of law, a case might arise in which the Treasurer ought, either with or without the issue of a duplicate draft, to pay directly to the claimant. But when a draft is rightfully delivered to an attorney, who holds it only to secure the payment of reasonable fees, the claimant cannot ask the aid of the Treasury Department. Under similar circumstances, a court of equity would not aid a party refusing to do equity. “He who seeks equity must do equity."
The Treasurer of the United States will be notified either (1) to pay to Di Cesnola the amount of the warrant, and take on it his receipt therefor, which receipt will be a valid voucher in the settlement of the Treasurer's account; or (2) to issue a duplicate draft for the amount in favor of Louis P. Di Cesnola. TREASURY DEPARTMENT,
First Comptroller's Office, April 8, 1881.
The only regulations prescribed (ante, 150) are as follow:
public Disbursing Officers.
TREASURY DEPARTMENT, Department No. 27.
Washington, D. C., February 13, 1877. Ind. Treasury Div. No. 28.
The following sections of the Revised Statutes of the United States and the sub. sequent regulations are published for the information and guidance of all concerned:
"SECTION 306. At the termination of each fiscal year all amounts of moneys that are represented by certificates, drafts, or checks, issued by the Treasurer, or by any disbursing officer of any Department of the Government, upon the Treasurer or any assistant treasurer, or designated depositary of the United States, or upon any national bank designated as a depositary of the United States, and which shall be represented on the books of either of such offices as standing to the credit of any disbursing officer, and which were issued to facilitate the payment of warrants, or for auy other purpose in liquidation of a debt due from the United States, and which have for three years or more remained outstanding, isatistied, and unpaid, shall be deposited by the Treasurer, to be covered into the Treasury by warrant, and to be carried to the credit of the parties in whose favor such certiticates, drafts, or checks were respectively issued, or to the persons who are entitled to receive pay therefor, and into an appropriation account to be denominated outstanding liabilities.””
“SECTION 308. The payee or the bona fide holder of any draft or check the amount of which has been deposited and covered into the Treasury pursuant to the preceding sections, shall, on presenting the same to the proper officer of the Treasury, 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.
"SECTION 309. The amounts, except such as are provided for in section three huvdred and six, of the accounts of every kind of disbursing officer, which shall have remained unchanged, or which shall not have been increased by any new deposit thereto, nor decreased by drafts drawn thereon, for the space of three years, shall in like manner be covered into the Treasury, to the proper appropriation to which they belong; and the amounts thereof sball, on the certificate of the Treasurer that such amount has been deposited in the Treasury, be credited by the proper accounting officer of the Department of the Treasury on the books of the Department, to the officer in whose name it haud stood on the books of any agency of the Treasury, if it appears that he is entitled to such credit.
**SECTION 310. The Treasurer, each assistant treasurer, and each designated depositary of the United States, and the cashier of each of the national banks designated as such depositaries, shall, at the close of business on every thirtieth day of June, Teport to the Secretary of the Treasury the condition of every account standing, as in the preceding section specitied, on the books of their respective offices, stating the name of each depositor, with his official designation, the total amount remaining on deposit to his credit, and the dates, respectively, of the last credit and the last debit made to each account. And each disbursing officer shall make a like return of all checks issued by him, and which may then have been outstanding and unpaid for three years and more, stating fully in such report the naine of the payee, for what purpose each check was given, the office on which drawn, the number of the voucher received therefor, the date, number, and amount for which it was drawn, and, wheu known, the residence of the payee."
(1.) Hereafter any Treasury draft or any check drawn by a public disbursing officer still in service, which shall be presented for payment before it shall bave been issued ihree full fiscal years, will be paid in the usual manner by the officer or bank on which it is drawn, and from fiwds to the credit of the drawer. Thus, any such draft or check issued on or after July 1, 1873, will be paid as above stated until June 30, 1877; and the same rule will apply for subsequent years.
Any such draft or check which has been issued for a longer period than three full fiscal years will be paid only by the settlement of an account in this Department, as provided in section 308 above published; and for this purpose the draft or check will be transmitted to the Secretary of the Treasury for the necessary action.
(2.) The reports of Independent-Treasury officers, national-bank depositaries, and public disbursing officers, required by section 310 above published, will be rendered promptly to the Secretary of the Treasury at the close of each fiscal year.
(3.) Whenever any disbursing officer of the United States shall cease to act in that capacity, he will at once inform the Secretary of the Treasury whether he has any public funds to his credit in any office or bank, and, if so, what checks, if any, he has drawn against the same which are still outstanding and unpaid. Until satisfactory information of this character shall have been furnished, the whole amount of such moneys will be held to meet the payment of his checks properly payable therefrom.
(4.) Hereafter, at the close of each fiscal year, the Treasurer, the several assistant treasurers, and designated and national-bank depositaries, will also render to the Fecretary of the Treasury a list of all disbursing officers' accounts still unclosed which have been opened on the books of their respective offices or banks more than three fiscal years, giving in each case the name and official designation of the officer, the date when the account with him was opened, and the balance remaining to his credit.
(5.) In case of the death, resignation, or removal of a public disbursing officer, any check previously drawn by him and not presented for payment within four months of its date, will not be paid until its correctness shall have been attested by the Secretary or Assistant Secretary of the Treasury.
(6.) If the object or purpose for which any check of a public disbursing officer is drawn is not stated thereon, as required by Departmental regulations, or if any reason exists for suspecting frand, the office or bank on which such check is drawn will refuse its payment.
CHARLES F. CONANT,
Acting Secretary. The bond (ante, 152) may be in the form following: KNOW ALL MEN BY THESE PRESENTS, That we,
and of - in the
of as sureties, are held and firmly bound unto the United States of America in the sum of eleven thousand dollars, ($11,000,) lawful money, to be paid to the United States of America or their assigns; to which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this
in the year of our Lord one thousand eight hundred aud eighty-one.
Whereas draft No. B. 5068 on diplomatic warrant No. 519, drawn on the Treasurer of the United States on the twelfth day of March, anno Domini one thousand eight hundred and eighty-one, payable to the order of Louis P. Di Cesnola, late consul at Cyprus, for the sum of five thousand tive hundred dollars and cents, ($5,500,-,) was at the date thereof delivered to a person who refuses to surrender or deliver the same to said Louis P. Di Cesnola, and so is, as to the said Louis P. Di Cesnola, lost.
And whereas the regulations of the Treasury Department of the United States require the party thus situated to give bond to the United States, with two sureties, to indemnify the United States, before a duplicate will be issued or any payment be made on account thereof; and the First Comptroller in the Department of the Treasury 18 willing to certify that a duplicate of the aforesaid dratt should be issued in consideration of the premises and of the execution of this bond; and said draft, so issued, and the amount thereof payable on said warrant, should be paid :
Now, the condition of this obligation is such, that if the above-bounden obligors, their heirs, executors, or administrators, or any of them, shall and do well and truly pay, or cause to be paid, wto any person who shall establish a valid adverse claim to the above-describeıl original draft, the full value thereof, on demand, with interest until paid; or shall pay to the United States of America, or their assigns, in lawful money, any sun which shall be erroneously paid, or which shall be ascertained to have been erroneously paid, to the order of said Louis P. Di Cesnola in consequence of said application to the Treasury Department of the United States for a duplicate of said original draft, or for payment of the amount thereof, together with all legal costs, and interest on said sum until paid, without any defalcation or delay; then this obligation to be void, or else to be and remain in full force and virtue.
[SEAL. ) (Signatures and wax or wafer seals of principal and sureties.) Signed, sealed, and delivered in the presence of
(Signatures of two witnesses.)
I do hereby certify that the sureties to the above bond are sufficient for the penalty thereof.
(A ssessor or collector of internal revenue: U. S. judge, marshal, district attornoy, clerk of court, assistant treasurer or depositary, collector of customs, naval other, or surveyor.)
INSTRUCTIONS FOR EXECUTING THIS BOND.
1. The given names should be inserted and signed in full. 2. Carefully observe and comply with the instructions.
3. If a bank is the principal, the blank in the first and second lines of the bound must be filled thus: “The
Bank of -, in the
hy cashier, duly authorized thereto by resolution of the hoard of directors." The bond must be signed for the bank by the cashier, thus: “The Bank of by
cashier;" and the seal of the bank must be affixed; and a copy of a resolution of the board of directors authorizing the cashier to execute the bond on behalf of the bank, certified to be correct by the secretary of the board under the seal of the bank, must be returned with the bond.
4. If a firm is the party in interest, the names of the individual members should be inserted as the principals of the bond, thus: “John Jones and James Smith, composing the firm of Jones & Smith;" and the bond should be signed by each of them.
5. The principal to the bond must make affidavit of loss. The form below given will answer in most cases:
AFFIDAVIT. STATE OF
Be it known that before me, the undersigned, a in and for said county and State, personally appeared
to me well known to be the identical person vamed in the foregoing bond, who, being duly sworn, deposes and says that the statement of facts given in said bond relative to the loss of the draft therein specified, is in all respects true, and deponent has made diligent search to find the said dratt, in all places where it was likely to be found, without success.
Sworn and subscribed before me, this day of --, A. D. 188—
Power of Attorney to receive Check or Draft from the Treasurer of the United States, to an
Individual. (Ante, 161.)
KNOW ALL MEN BY THESE PRESENTS, That I, John Smith, of No. 17 Main street, city of Bellefontaine, of the county of Logan and State of Ohio, do hereby make, constitute, and appoint John Brown, of No. 17 F street, north west, Washington City, D. C., my true and lawful attorney, for me, and in my place and stead, to demand and receive from the Treasurer of the United States draft No. 1860, dated April 1, A. D. 1881, for one thousand dollars, issued on War Department settlement warrant No. 1940), [or Interior Department, Indian Office, or other Department, ] and to receive and receipt for the said draft, but not to indorse it or receive payment thereof, giving my said attorney full power to do everything whatsoever necessary under the statnte or executive regulation as fully as I ould do if personally present, hereby ratifying and contirming all that may be done by my said attorney by virtue hereof. In witness whereof, I have hereunto set my hand, this 10th day of April, A. D.
JOHN SMITH. [SEAL.]
[Of wax or wafer.) Signed in the presence of
[Two witnesses.) STATE OF OHIO,
County of Logan, 88: Be it known that on the i0th day of April, A. D. 1881, before me, John M. Lawrence, a potary public in and for said county, personally appeared the above-named John Smith, to me personally well known to be the identical person nained in the foregoing power of attorney, who, in my presence, subscribed and acknowledged the said power of attorney to be his act and deed; and I do hereby certify that the said power of attorney was read and fully explained to the said John Smith at the time of acknowledgment,
In testimony whereof, I have hereunto set my hand and affixed my notarial seal the day and year aforesaid. [Notarial seal. ]
JOHN M. LAWRENCE,