The fact that the sureties are responsible for all public moneys that came into the postmaster's hands which are not properly accounted for, does not create any contract between them and the bank, as the contract with the bank is to pay either to the principal or to the agent. In the lifetime of the agent the bank may pay him the deposit, if the principal (the United States) so directs; but after the agent's death the deposit remains subject to the order of the principal only.

Trust funds held by the decedent, which are kept separate, and come into the hands of his executor, are not assets. (Trecothick vs. Austin, 4 Mass., 16; S. P., Robinson vs. Codman, 1 Sum., 121; U. S. vs. Cutts, Id., 133. For the liability of the administrator of the surety of a public debtor, see U. S. vs. Primrose, Gilp., 58; Vaughan vs. Northup, 15 Pet., 1.)

The administrator of a creditor of the Government, duly appointed in the State where he was domiciliated at his death, has full authority to receive payment, and give a full discharge of the debt due to the intestate. (Vaughan vs. Northup, 15 Pet., 6.)

In Morse on "Banks and Banking," 302, (2d ed.,) it is said:

"If a deposit account stands in the name of any person, not as an individual, but in an official capacity, upon his decease, or upon the cessation of his official character, the property in the deposit, and with this the right to draw checks against it, will pass to his successor in the office. Thus, a deposit account to the credit of one as executor does not pass to his own administrators upon his decease, but to the administrators de bonis non of the estate of the prior deceased. The bank will be discharged only by payment made to them." (Allegheny Bank's appeal, 48 Pa. St., 328; Stair vs. New York National Bank, 55 Pa. St., 364; Farmers' and Mechanics' National Bank vs. King, 57 Id., 202; Perry on Trusts, secs. 287, 288, &c.)

"If a deposit be made in the name of a depositor as agent,' the principal may recover and hold it as against a creditor of the depositor who has attached it." (Bank of Northern Liberties vs. Jones, 42 Pa. St., 536.)

An examination of the cases will show that the principles thus stated are not in conflict with those stated in the cases to which reference has been made.

The result is, that the executrix is not entitled to collect any salary accruing in the office after the decease of the postmaster.

II-Welles is entitled to the salary during the time he performed the duties of postmaster.

1. The act of March 3, 1879, is clear and conclusive. It seems to have been passed to meet this class of cases. It declares that "any person performing the duties of postmaster, by authority of the President, ⚫ where there is a vacancy for any cause, shall receive

for the term for which the duty is performed the same compensation" that a regularly appointed postmaster would be entitled to. Welles has satisfied the conditions of this act.

(1.) He was, during the period for which the executrix claims the salary attached to the office, the "person performing the duties of postmaster."

(2.) He performed them, as already shown, "by authority of the President."

a. It has been sufficiently shown that the "regulation" was for this purpose the act of the President.

b. As the law has given authority to the head of the Post-Office Department to make the "regulation," this, as his act, would be sufficient, if it were not for the express provision that the person performing the duties must act "by authority of the President;" because Congress could in this mode "vest the appointment" of a person to perform “the duties of postmaster" in the Postmaster-General, (Const., art. II, sec. 2, clause 2;) and, no particular form of appointment is required. (Bowerbank vs. Morris, Wall. C. C., 119.)

c. Congress cannot by law, and without other appointment, designate persons as officers in the postal service. (Case of Dist. Atty., 16 Am. Law Reg., 786; U. S. vs. Maurice, 2 Brock., 96.)

The law could, without executive direction or authority, give to a surety the right to discharge the duties. (Sheboygan vs. Parker, 3 Wall., 93.)

It has in this case given such right, but only upon condition that the surety act "by authority of the President."

(3.) There was a "vacancy" in the office, caused by the death of the postmaster; and Welles performed the duties of the office during the period in question.

(4.) Welles is, therefore, entitled to the salary with which he has, in his account, credited himself; and the settlement and adjustment of the postmaster's account for the quarter ending June 30, 1879, made by the Auditor of the Treasury for the Post-Office Department, are affirmed.

TREASURY DEPARTMENT,

First Comptroller's Office, February 21, 1881.

IN THE MATTER OF THE RIGHT OF A DIPLOMATIC OFFICER OF THE UNITED STATES TO HIS SALARY DURING AN ABSENCE FROM HIS POST AS A SUBPOENAED WITNESS BEFORE A COMMITTEE OF CONGRESS.-SEWARD'S CASE.

1. The law of nations is recognized by the Constitution as a part of the law of the land.

2. The duties of foreign ministers are defined by the law of nations, but those of American foreign ministers are subject to regulation or modification by treaty or act of Congress.

3. The salaries of ministers of the United States to foreign countries are wholly dependent on the legislation of Congress.

4. The post of duty of an envoy extraordinary and minister plenipotentiary, within the meaning of section 1742 of the Revised Statutes, is that place at which he may be required to be by order of the President for a purpose connected with his position or duty as such officer.

5. Whether a diplomatic officer of the United States can, without the authority of the President, be compelled to leave his post of duty abroad and appear as a witness before a court or committee of Congress—quære?

6. The provision of the statute which deprives diplomatic officers of salary in case of absence, changes the rule which would otherwise generally exist as to the right to compensation.

George F. Seward was consul-general of the United States at Shanghai, China, from October, 1861, until January 6, 1876; at which latter date he resigned, and became envoy extraordinary and minister plenipotentiary of the United States to China.

January 11, 1878, a committee was appointed, under a resolution of the House of Representatives of that date, to examine "into all the affairs of the" State and other Departments, with power to examine witnesses and send for persons and papers.

Charges having been made against Mr. Seward, relative to his official conduct as consul-general, the committee was engaged from February 5. 1878, to February 22, 1879, except during the recess of Congress, from June 20 to November 20, 1878, in investigating, inter alia, said charges.

The committee was also engaged in making inquiries as to the official conduct of Mr. Seward as envoy.

On the 27th of April, 1878, the committee, on the request of Mr. Seward's counsel, notified the Secretary of State that, "if the President should determine to grant Mr. Seward a leave of absence," for the purpose of appearing before the committee to testify and cross-examine witnesses, he should have the opportunity within a reasonable time, on

notice to him by telegram and on condition that he be required to bring his books.

The Secretary of State, on the 1st of May, by cable despatch, gave Mr. Seward, then on duty in China, leave, and, on the 8th of May, directed him to "start by first opportunity" to Washington.*

He left China on his return, June 7, and reached Washington November 15, 1878.

On the 19th of February, 1879, a subpoena duces tecum was issued and served on Mr. Seward by order of the committee.

He remained here and in the United States, by permission of the President, giving his attention to the investigation when practicable, until April 20, 1879, when, by direction of the President, he left the United States on the return to his post of duty, which he reached, in China, June 19, 1879. (For reports of committee, see House Rep., No. 117, 3d Sess. 45th Cong., Feb. 22, 1879; House Rep., No. 134, 3d Sess. 45th Cong., March 3, 1879; and House Rep., No. 141, 3d Sess. 45th Cong., March 3, 1879.)

Mr. Seward's accounts for salary, &c., having been presented to the Fifth Auditor and a balance stated, the First Comptroller has to decide the question whether Mr. Seward is entitled to the salary of his office during his absence from China for the period above stated.

October 4, 1879, the Secretary of State, in answer to an inquiry of the Fifth Auditor, said:

"The absence of Mr. Seward from his post from the 7th of June, 1878, the date of his departure from Peking, to his return to that place on June 19, 1879-one year and twelve days-presents a distinct and important question. This Department having maturely considered this question, has decided that Mr. Seward's absence from his post during the period just named, was not such an absence as the law contem

*The testimony in relation to Mr. Seward is found in Mis. Doc. No. 31, 2d Sess. 45th Cong.

The cable despatches of May 1 and 8 are as follow: "Telegram.

"STAHEL, Vice-Consul General, Shanghai:

"DEPARTMENT OF STATE,
66 Washington, May 1, 1878.

"Inform Seward that sub-committee, on motion of his conusel, consent to reasonable time for his appearance here. Leave granted; and he is required to bring all books, vouchers, and papers relating to the business of consul-general at Shanghai during his incumbency of that office, including any that may have been taken to Peking. Telegraph answer.

"EVARTS."

Sent May 2.

"Telegram.

"STAHEL, Consul-General, Shanghai:

"DEPARTMENT OF STATE,

"Washington, May 8, 1878.

"Send messenger at once after Seward, with telegrams, and inform him he must start by first opportunity. Let books follow him, if necessary.

Answer.

"EVARTS,

"Secretary.”

plated when it limited the allowance of compensation of a minister, when away from his post, to sixty days of the annual salary. Mr. Seward did not, as is usually the case, withdraw from Peking for his recreation, or to attend to ordinary private business. He had been formally charged before the proper authority of his own Government with high misdemeanors, while holding the commission of consul-general at Shanghai. The authority which entertained the charge admitted that his appearance here was necessary to meet it."

Hon. Samuel Shellabarger for Mr. Seward:

An officer is not "absent from his post or from duty" when he is in discharge of the duties of his post, under the lawful commands of his superior officer, at any place where such superior has power in law to command him to go. (U. S. vs. Williams, 23 Wall., 411; U. S. vs. Lippitt, 10 Otto, 663.) Where two statutes exist in pari materia, one cutting off pay for "absence on leave or otherwise," and another allowing a superior officer to command such absence for the purposes of a great public duty relating to that very post, then such absence does not come under the head of "absence on leave or otherwise."

The Revised Statutes, sections 202 and 1752, authorize the President to control the movements of ministers, and the practice of the State Department is never to regard an absence by order as "an absence on leave or otherwise.”* What the statute meant to render unlawful, was

*Instances of this practice are given in the following paper from the diplomatic bureau of the State Department:

DIPLOMATIC BUREAU, February 17, 1880.

Special services of United States ministers abroad, under orders or with approval of the Department, and entailing absence from their posts.

In the early history of the diplomacy of the United States, it was common usage to detach ministers on special service, away from their legations, to negotiate treaties with countries where the United States had no representative, and the like. Many of the earlier treaties with the African and Oriental States were so concluded.

A prominent historical instance is found in the celebrated Ostend conference, when Mr. Soulé was sent from Madrid to Ostend to confer with Mr. Buchanan, of London, and Mr. Mason, of Paris, on the state of Cuba.

Coming down later, Mr. Low, the minister at Peking, was sent to Corea, to endeavor to negotiate a treaty, under the protection of a naval vessel.

On the 29th of August, 1879, Mr. Noyes was instructed to visit northern Africa and the Mediterranean coast, to report on the commercial openings there for American trade. (See F. R., 1879, p. 342.) He did so, and was absent some four months, during which time he was regarded as on duty.

On the 30th of July, 1879, Mr. Kasson, minister at Vienna, was ordered to visit Romania and Servia, to negotiate for the opening of diplomatic and commercial relations with those countries. (See F. R., 1879, p. 79.) He did so, and was allowed expenses, in addition to his salary for the time so on duty.

On the 30th of October, 1880, Mr. Putnam, minister at Brussels, was instructed to proceed to Paris, to take part as the delegate of the United States in an international property conference. He did so, and was allowed expenses for the trip, besides being regarded as continuously on duty.

The instances of ministers being ordered to leave their posts on acccount of business properly pertaining to the countries in their charge are numerous. I mention the following:

On the 17th of March, 1880, Mr. Maynard, minister at Constantinople, was ordered to proceed to Cairo, there to try Sephen P. Mirzan, an American, accused of homicide. His personal expenses were allowed.

On the 13th of December, 1879, Mr. Maynard was authorized to visit Syria, and report on the condition of the country and the consulates. He did so, and was regarded as on duty during the whole time of his absence.

On the 15th of August, 1879, Mr. Foster, minister at Mexico, was ordered to visit the Rio Grande country, and report on the condition of the consulates.