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To be acknowledged before an officer having authority to take acknowledgment of deeds.
This instrument must be signed in the presence of two persons, who must sign their names as witnesses.
The residence of both parties must be distinctly stated. The acknowledgment must be certified according to the circular relating to powers of attorney to indorse drafts. (Moyer's case, 1 Lawrence, Compt. Det'., 1:25.)
This power of attorney (unlike that to iudorse and collect a draft) may be executed prior to the date of the issue of the warrant or draft; but when so executed should so fully describe the claim to which it relates as to clearly identify and include the draft when issued. Or the power may be to receive any and all drafts or checks issued or to be issued by the Treasurer of the United States to the party executing the power, and thus include the draft.
Power of Attorney to receive Draft from Treasurer, to Copartners.
KNOW ALL MEN BY THESE PRESENTS, That the copartnership under the name and style of John Smith & Co. [Then proceed substantially as in foregoing form, and conclude thus:] Witness the name of the said copartnership, this 10th day of April, A. D. 1881.
JOHN SMITH & CO.
A member of said Copartnership. Signed in the presence of
JOHN A. PRICE.
STATE OF OHIO,
Be it known that on the 10th day of April, A. D. 1881, before me, John M. Lawrence, a notary public in and for said county, personally appeared the above-named Jolin Smith, a member of said copartnership firm of John Smith & Co. above named, to me personally well known to be such, and who in my presence signed the said copartnership name to the foregoing power of attorney, and acknowledged the said power of attorney to be the act of said copartnership tirm; and I do hereby certify that I personally know said John Smith to be a member of said copartnership firm; that the said power of attorney was read and fully erplained to the said John Smith at the time of acknowledg, ment, and that lie then stated that he fully understood the same, and was satisfied there with.
In testimony whereof, I have hereunto set my hand and affixed my notarial seal, the day and year aforesaid. [Notarial seal.]
JOHN M. LAWRENCE,
Notary Public. The following instructions must be particularly observed and complied with, viz: 1. The power of attorney should be executed in the copartnership name. 2. The signature must be made in the presence of two witnesses.
3. The place of business of the firm and the residence, respectively, of each of the copartners must be distinctly stated in the body of the instrument.
4. The instrument should be acknowledged before an officer having authority to take acknowledgment of deeds.
5. Evidence of the existence of the copartnership and of the authority of the copartner to execute the power of attorney will be required as in the case of powers to indorse. (Moyer's case, 1 Lawrence, Compt. Dec., 125.)
IN THE MATTER OF CLAIMANT'S RIGHT TO REVOKE
POWER OF ATTORNEY,-MCALLISTER'S CASE.
1. The Treasurer is not bound to pay an agent or attorney, even on a power of at
torney for that purpose executed by the claimant, unless some valid regulation of the Treasury Department so requires. His duties are not to be prescribed or
modified by such power. 2. The duty of executive officers to make payment to claimants carries with it the
power to make all inquiries necessary to its proper perforinance. 3. The regulations” of the Department of the Treasury, and the general principles
of law applicable to them and to statutes, are to be liberally construed for the purpose of giving to attorneys all proper means of securing the payment of fees
from their employers. 4. A claimant cannot change his attorney in the prosecution of a claim in the De
partment of the Treasury without the consent of the Secretary. To do so is forbidden by a “regulation” duly authorized. Such a regulation has the force of law; but it does not and cannot interfere with the right of the Court of Claims, or of a commission created by Congress, to permit a change of attorneys prosecuting claims before these tribunals; nor with the right of a claimant to revoke the authority of an attorney to receive a draft issued for the payment of a judgment of the Court of Claims, or a claim allowed by a commis. sion created by Congress, unless he is “certified by said court or commission as
the attorney of record.”' 5. When an attorney has prosecuted a claim before the Commissioners of Claims,
and has failed to procure their certificate required by the “regulations,” the power of attorney given to him by the claimant to receive a draft froin the
Treasurer “for such sum as may be ailowed” is rerocable. 6. Consideration of the grounds upon which the loss of the right to revoke a
power of attorney may be alleged, or upon which a claimant may be estopped
from asserting such right. 7. Technically, and in strict legal parlance, there can be no attorney of record in
the prosecution of claims before an executive department or a commission created by Congress, inasmuch as neither of these has, in the full sense, judi
cial power and a record. 8. A power coupled with an interest or a trust, or upon a consideration, or given
as a security, is not revocable by the act of the maker. 9. A power of attorney, given before the issuing of a warrant for the payment of
a claim, is prevented by section 3477 of the Revised Statutes, as well as by sound public policy and general common-law principles, (U. S. vs. Robeson, 9 Pet., 325,) from becoming a power coupled with an interest or a trust, or given
apon a valuable consideration, or as a security. 10. When a power vests in the donee any legal or equitable interest, or charges
him with a trust, the exeeution of which depends upon the exercise of the power, it is considered as coupled with an interest or a trust, and it is not generally revocable.
11. A power given for a valuable consideration is not a power for which the service
to be rendered is the sole consideration; but a power under which, for example, an agent advances money or other property of value, upon an agreement, ex
press or implied, that he is to be reimbursed for such advances, is such a power. 12. Agreements for the rendition of services or for the advance of money in the
prosecution of claims, maile upon consideration of the receipt and custody, is security for compensation or repayment, of the drafts to be issued in payment of such claims, are in contravention of law, public policy, and the regulations of the Treasury Department; and no agent or attorney can have an irrevocable
power to receive or hold such drafts as such security. 13. A power given to an attorney to receive or hold a Treasury draft as security for
compensaation or repayment by reason of his having rendered services or advanced money in the prosecution of a claim, will be irrevocable only when given after the issuing of the warrant in payment of such claim, and conforin
ly to the statutory provisions. 14. An injunction cannot interrupt or arrest the payment of money by the Gore
ernmeit. Executive officers have not such jurisdiction for the prevention of
wrongs and enforcement of rights as that which exists in courts of equity. 15. When a power of attorney has been given to receive a draft, and a revocation
thereof has been made with an apparent purpose to avoid the payment of fees due the attorney, the Treasurer will be advised to pay the claimant in person at the Treasury; first giving notice to the attorney of the time and place of such payment, so that he may avail himself of any juicial remedies which he
may have against the claimant. 16. The First Comptroller, being charged with the duty of settling the accounts of
tlie Treasurer, and consequently of passing on the validity of all vouchers submitted by the Treasurer for payments made, is the only officer authorized to pass on the validity of powers of attorney (1) to collect actual money from the Treasurer, or (2) to receive and indorse drafts. He only can decide what powers are valid, and to whom money should be paid or drafts delivered. The “regu
lations” of the Treasury Department do not apply to such powers. 17. The First Comptroller, having such exclusive and final jurisdiction over ques.
tions affecting the settlement of the Treasurer's accounts, may directly advise the Treasurer as to his duties in paying warrauts, and finally decide to whom they shall be paid. Necessarily incident to this jurisdiction is the power to decide who are entitled to receive drafts, in order that payments may thereby be made.
The material facts are as follows:
On May 25, 1871, Richard McAllister filed a petition on behalf of John G. Iligginbotham, of Taylor's Depot, Lafayette County, Mississippi, addressed to "the Commissioners of Claims," under the act of March 3, 1871, (16 Stats., 521,) making a claiin against the United States for 1,609.50.
The petition, duly sworn to by the claimant, and otherwise properly authenticated, contains the following:
“Your petitioner hereby constitutes and appoints Richard McAllister, attorney-at-law, of Washington, D. C., his true and lawful attorney, with full power of substitution and association, to prosecute this, his claim, and to receive a draft payable to the order of your petitioner for such sum as may be allowed, and to do all acts necessary and proper in the premises."
This is executed in the presence of two witnesses, is verified by aflidavit, and duly stamped with a revenue stamp.
The Commissioners of Claims allowed the claimant $1,569; and the act of March 3, 1881, made an appropriation to pay the same.
On March 24, 1881, the Third Auditor stated an account in favor of Higginbotham for said sum, with a memorandum therein that it was payable to the claimant, “ care of Richard McAllister, attorney." The Second Comptroller certitied a balance accordingly.
On April 4, 1881, the Secretary of War addressed a settlement requisition to the Secretary of the Treasury, asking him to cause a warrant for said sum to be issued in favor of said Higginbotham, “ care Mr. Richard McAllister, attorney, present," due on settlement, as per certificate of Second Comptroller, No. 958, to be charged to the proper appropriation.*
While the requisition was pending before the Second Comptroller, application on behalf of Sullivan & Sullivan, attorneys, of Oxford, Mississippi, claiming to be attorneys of Higginbotham, was made that there be inserted in the Auditor's statementa memorandum that thedraft should be sent to the “ care of said Sullivan & Sullivan.” The Second Comptroller decided that the statement in the requisition of the Secretary of War, that the draft should be sent to the care of McAllister, should remain as it was, in favor of McAllister, in the Auditor's statement, and as in the requisition.
On April 5, 1881, the Secretary of the Treasury signed a warrant payable to Higginbotham for said sum, with a statement therein that
*The requisition is as follows: SEULEMENT REQUISITION, } WAR DEPARTMENT.
SECRETARY TREASURY, No. 1629.
1977. April 5, 1881.
Warrant Dirision. To the SECRETARY OF THE TREASURY:
SIR: Please to cause a warrant for one thousand five hundred and sixty-nine dollars to be issued in favor of John G. Higginbotham, of Miss., care Richard McAllister, attornes, present, due on settlement, as per certiticate of Second Comptroller, No. $5*. to be charged to the undermentioned appropriations. Given under my hand this 4th day of April, 1881.
Claims of loyal citizens for supplies furnished during the rebellion, act March 3, 1881...
$1,569 J. W. B., C. M. P., 3865.
the draft in payment should be sent "care Richard McAllister, present."
When this warrant came, on March 6, 1881, to the First Comptroller to be comtersigned, (Rev. Stats., 269,) an application was made ou behalf of Sullivan & Sullivan, that the Treasurer be directed to send the draft to their care, in Mississippi.
There is on file with the papers a power of attorney, dated February 18, 1878, from Higginbotham to Sullivan & Sullivan, authorizing them to receive the draft, and purporting to revoke the authority of McAllisterit
Itsufficiently appears from the evidence that McAllister was employed
*The warrant is as follows:
OFFICE OF THE SECRETARY OF THE TREASURY,
Pay to John G. Higginbotham, care Richard McAllister, present, SETTLEMENT
or order, to be charged to the appropriations namerd in the margin. WARRANT.
one thousand five hundred and sixty-nine dollars, clue
tlement, pursuant to a requisition, No. 1629, of the Secretary of War, No. 1977.
dated 4 April, 1881, countersigned by the Second Comptroller of the $1,569
Treasury and registered by the Third Auditor. Aud for so doing this this shall be your warrant.
Given under my hand and the seal of the Treasury
Department, this 5 day of April, in the year [SEAL.] of our Lord one thousand eight hundred and
eighty-one, and of Independence the one hun-
J. K. UPTON,
.188istant Secretary. Claims of loyal citizens for supplies furnished during
Countersigned, 6th: rebellion
WILLIAM LAWRENCE, -$1, 569
First Comptroller. Registered:
GLENNI W. SCOFIELD,
OFFICE OF THE TREASURER OF THE UNITED STATES. Received for this warrant the following draft:
88: Lafayette County, KNOW ALL MEN BY THESE PRESENTS, that I, the undersigned, J. G. Higginbotham, of Lafayette county, Mississippi, have made, constituted, and appointed, and by these presents do make, constitute, appoint, and confirin, Sullivan & Sullivan, of Oxford, Mississippi, my sole, true, lawful'agents and attorneys, to sue for, prosecute, collect, conduct, control, represent, and manage entirely and absolutely, my claim against the United States of America for supplies taken or furnished during the Rebelliou to the United States Army, which claim, No. 4634, is now pending before the Southern Claims Commission, and any and all other claims which I may have or be entitled to against said United States; and I authorize said Sullivan & Sullivan to receive and receipt for in my name any and all drafts, moneys, and papers, and to do any and all things necessary in the premises to the collection of said claim or claims, as fully as I could do myself personally. And I do hereby, forever and fully, revoke any and all former or other powers of attorney or authorizations in the premises whatever. Given under my hand and seal, on this 18th day of February, 1878.
J. G. HIGGINBOTHAM. [SEAL.] This was duly attested and acknowledged before a proper officer.