warrant to the Treasurer, who delivers the draft according to the memorandum, taking the receipt of the attorney or agent therefor on the warrant.* This was done in the case of Di Cesnola.

If there be a contest between different attorneys as to the right to receive a draft, the matter is submitted to the Comptroller who certified the balance on which the warrant was issued, and he renders his decision thereon.

The mode of payment by drafts is fully authorized. (Rev. Stats., 300, 306, 307, 308, 3477, 3593, 3644, 3645, 3646, 3647, 4046, 4765, 5208, 5413, 5414, 5495, 5496; Draft case, 1 Lawrence, Compt. Dec., 11; Rhawn's case, Id., 109; Moyer's case, Id., 116.)

Dues from the Government are paid in various modes:

I.-Disbursing officers, who are such merely, (not including the Treasurer of the United States,) pay in money or by checks. (Rev. Stats., 3620, 3651; McKnight vs. U. S., 13 Ct. Cls., 204; Moyer's case, 1 Lawrence, Compt. Dec., 127.) Most of such officer.: are by law authorized to issue duplicates for checks not exceeding one thousand dollars each, after six months and within three years from the date of the loss of the originals. (Rev. Stats., 3646.) The mode of relief provided by the

Hereafter the accounting officers will decide what persons as attorneys or claimants are entitled to receive drafts under the rules of the Department. This practice will prevent the delay occasioned by sending the papers to the Secretary or Assistant Secretary for such decision. H. F. FRENCH,

In relation to Powers of Attorney.

Acting Secretary.

1876. Department No. 130. Warrant Division No. 2.

TREASURY DEPARTMENT, October 10, 1876. The order of the Department of April 16, 1875, relating to powers of attorney, is hereby revoked, and the following adopted in lieu thereof:

In every case to be finally adjudicated in this Department, the attorney shall present a letter of attorney from the claimant to prosecute the case, and shall be regarded as the attorney in such case, with the right to receive any draft therein. The claimant may change his attorney at any time, with the consent of the proper officers of the Department.

In cases certified for payment by the Court of Claims, or by any commission created by Congress, the persons certified by said court or commission as the attorneys of record shall be regarded as such by the Department, and be entitled to receive all drafts in such cases.

In all cases drafts for claims will be made to the order of the claimant, and will be delivered to the proper attorney, according to this order.

The Secretary reserves the right in all cases to make such special orders as may be proper.

LOT M. MORRILL,

Secretary.

statute must be deemed the only one authorized in case of the loss of such originals; and hence, in cases not within the statute, no duplicate checks can be issued by these officers. The maxim applies, Expressio unius est exclusio alterius. The act of April 19, 1871, (17 Stats., 4; Rev. Stats., 4770,) authorized the issuance of duplicates for lost checks in payment of pensions; but this authority was revoked by act of Febru ary 27, 1877, (19 Stats., 252.)

This general provision is not applicable to checks for the payment of interest on registered Government bonds. In one sense these are checks of a disbursing officer; but the Secretary of the Treasury, pursuant to his authority to execute the loan laws and make "regulations" thereunder, has provided for the issue of duplicates of lost interestchecks, "after forty-five days have elapsed from the date of the original." This regulation in terms applies only to the funded loan of 1891; but in practice it is applied to all the funded loans. (Rhawn's case, 1 Lawrence, Compt. Dec., 109; McKnight vs. U. S., 13 Ct. Cls., 305; S. c., 98 U. S., 179.) There is no express provision by statute for the issue of duplicates of drafts which, as in this case, are drawn by the Treasurer of the United States, pursuant to warrants drawn in favor of payees. The Treasurer's authority to issue such duplicates in proper cases, as a means of executing the duties of his office, is fully supported both by inference of law and by commercial usage. The Government, in making payments, necessarily adopts many usages of business-men and banking-houses; and the principles underlying and regulating such usages are recognized as applicable to governmental transactions, except in so far as they may be in conflict with public policy or the sovereignty of the national power, or as they are controlled by statutory enactments. (Richey's case, 1 Lawrence, Compt. Dec., 109, n.; Bank of the United States vs. U. S., 2 How., 711; McKnight vs. U. S., 98 U. S., 179; s. c., 13 Ct. Cls., 305, 306.)

The Treasurer is by law REQUIRED TƆ PAY parties named in warrants properly drawn on him. (Rev. Stats., 248, 305.) A draft for that purpose is not a payment-it is only a means of effecting payment; it is not money. (Draft case, 1 Lawrence, Compt. Dec., 21.) If a draft be lost or rendered inaccessible to the rightful owner without his fault, and especially if the loss or inaccessibility has been caused by an officer of the Treasury having charge of the direction, issuance, or delivery of the same, the duty nevertheless remains to make payment. Whatever is necessary to the performance of this duty is not merely an incidental power of the Treasurer, but a part of the authority expressly given him by law. (Rev. Stats., 248, 305; Inspectors' case, 1 Lawrence, Compt. Dec., 201; Bender's case, Id., 317.)

When a check or draft is lost, the duty to give a duplicate, on proper evidence, at the proper time, upon sufficient indemnity being offered, is one which, as between private persons, courts will enforce. (2 Daniel, Neg. Inst., secs. 1164, 1474; Thomson on Bills, Wilson's ed., 204; Morse on Banks and Banking, 2d ed., 256, 370; Chitty, Bills, 13 Am. ed., [263] 299; 2 Parsons, Notes and Bills, 262, note i; Byles on Bills, Sharswood's ed., [366] 544; Edwards on Bills, 304; Rhodes vs. Morse, 14 Jur., 800; Taylor vs. Scrivens, 1 Beav., 571; Walmsley vs. Child, 1 Ves., sr., 346, 347; Leftley vs. Mills, 4 T. R., 170; 2 Camp., 215; Powell vs. Monnier, 1 Atk., 613; Johus vs. Mason, 9 Hare, 29; Penny vs. Penny, Id., 39; Eccles vs. Cheyne, Id., 215.) Neither the Government nor any of its officers can be sued in court for the purpose of requiring the issue of a duplicate draft. But executive officers, as agents of the Government, will, in proper cases, do without suit that which, in similar circumstances, courts would compel private parties to do. The Government is in theory impeccable, and should be so in practice. The fact that seetion 3646 of the Revised Statutes authorizes mere disbursing officers to issue duplicates of lost checks, cannot be a valid objection to the authority of the Treasurer to issue a duplicate of a lost, destroyed, or unavailable draft. The provisions in the case of checks are authorizing or enabling in their form. In effect, they simply regulate and limit an authority to issue duplicates which existed before there was any statutory provision on the subject. Similarly, as to drafts like that now in question, the authority also existed to issue duplicates, or to make payments without them. In the absence of such authority it would not be possible to perform properly the duties imposed by law on the Treasurer. It woul be unreasonable to suppose that Congress, in providing for payments by means of drafts, intended to leave the Treasury Department without the power to discharge that duty efficiently.

If a draft be issued to a party, and by accident it be destroyed in the presence of, for example, the Secretary of the Treasury, is there no authority to make payment to the payee of that draft? Is the Treasurer, in the face of the statutory requirement to make payment, absolved from that duty by the circumstance of the draft being destroyed? The draft is not payment per se; it is only an order to make payment; and if it pass into the hands of a person having no claim on it, is the party who is entitled to payment without all remedy against such an accident? Is the payee of a draft without remedy in case of its loss? He might, it is true, apply to Congress for relief, which that body could grant; but if such application were his sole means of obtaining relief, the delay, inconvenience, and hardship to him would be very great,

and the probable expensiveness of the proceeding would in all cases impair, and often wholly destroy, the value to him of the draft as an order for payment. To restrict him to so dilatory a method of collecting an acknowledged debt would involve the gravest injustice to him, and a needless addition to the business of Congress; and to deny to the Treasury Department the power to afford proper relief in such cases, is to deny to it a power possessed by every corporation and private citizen in the liquidation of claims and debts. Any construction of the laws which would operate as a denial of such a proper and necessary power would, if applied to other laws under which it acts, often render the Treasury Department impotent to carry out some of the most important purposes of its existence.

If it be objected that the Treasury Department has not the requisite facilities for taking testimony in respect to such matters, it is sufficient to reply, that vastly more important and difficult questions are daily decided under its powers and agencies for the determination of the rights of claimants. No court can give relief in the case of a lost Treasury draft, for courts have no jurisdiction over the Government or its officers in such a matter.

In one sense the draft originally issued to Di Cesnola is not lost. If it were buried at a known spot in the bottom of New York harbor, it would not be literally lost; but if inaccessible, it would, for all practical purposes, be lost. (Edwards, Bills, 304, 306; 2 Daniel, Neg. Inst., sec. 1467.) The latter is the condition of the draft in question; the payee cannot obtain possession of it. It is not certain that replevin could reach it, even if such action would lie; and trover or other action might be unavailing. The draft is now so far lost that the Treasurer is fully authorized to make payment without its presentment, if the party holding it had no right to receive it; and it is decided, on the evidence submitted, that he had no such right. A draft payable to order, and not indorsed, may be lost by the payee, may come again into his possession after he has received payment on a duplicate, and be transferred by him to a bona fide indorsee. In such case the question may arise, How long after date of the draft may a party take it by indorsement and be regarded as a bona fide indorsee? In other words, at what period does the law charge an indorsee of a draft with notice. of objections to its negotiation?

A duplicate draft should not be issued until such period has elapsed that an indorsee of the original would be chargeable in law with notice of objections to its payment; otherwise, the original might be indorsed to a bona fide holder having a right, on the principles of lex mercatoria,

to payment. If the duplicate were issued before such lapse of time, the Treasury would become liable to make double payment; and a refusal to pay the bona fide indorsee of the original draft would be a fraud upon him. The authorities are not agreed as to the length of time necessary to charge an indorsee with notice. It will depend largely on circumstances. In this respect there is a difference between bills of exchange and checks. A bill of exchange is designed for circulation; a check, for immediate payment. (2 Daniel, Neg. Inst., sec. 1595; Down vs. Halling, 4 Barn. & C., 333.)

A series of transfers of a check cannot prolong the liability of the drawer. (2 Daniel, Neg. Inst., sec. 1595; Story on Notes, secs. 495, 496; St. John rs. Homans, 8 Mo., 382; Foster vs. Paulk, 41 Me., 425; Reid vs. Reid, 11 Texas, 585; Lilley vs. Miller, 3 Nott & McC., 257; Brown vs. Lusk, 4 Yerg., 210; Taylor vs. Young, 3 Watts, 343; Harker vs. Anderson, 21 Wend., 372; Cruger es. Armstrong, 3 Johns. Cas., 5.)

The name given to the order of the Treasurer for the payment of money in the case now under consideration is "draft," (Rev. Stats., 307, 3593, 3644;) that given the order drawn by other disbursing officers is "check." (Rev. Stats., 306, 3646, 3647.) Public policy puts all these checks and drafts on the footing of paper not designed to circulate, but to be considered as overdue after the earliest practicable period or date of presentment. This is so, ex vi termini, as to checks, and it is so, by statute, as to drafts.

The Revised Statutes provide as follows:

"SEC. 3645. It shall be the duty of the Secretary of the Treasury to issue and publish regulations to enforce the speedy presentation of all Government drafts for payment, at the place where payable, and to prescribe the time, according to the different distances of the depositaries from the seat of Government, within which all drafts upon them, respectively, shall be presented for payment; and, in default of such presentation, to direct any other mode and place of payment which he may deem proper; but, in all these regulations and directions, it shall be his duty to guard, as far as may be, against those drafts being used or thrown into circulation as a paper currency or a medium of exchange."

Under this provision, in the absence of any regulation as to the time of presentment, and in conformity with the well-settled principles of the law of notice, it must be held that an indorsee of a Government check or draft payable to order is chargeable with notice of all objections to its payment if he does not receive it within a reasonable time after its date. What is a reasonable time depends, as already observed, on circumstances. A check or draft issued at Washington for a party at San Francisco will not be regarded as overdue until after it could

*

For regulations issued under this provision, see post, 163, 164.