under the authority of the United States, and all civil actions in which the United States are concerned, and, unless otherwise instructed by the Secretary of the Treasury, to appear in behalf of the defendants in all suits or proceedings pending in his district against collectors, or other officers of the revenue, for any act done by them or for the recovery of any money exacted by or paid to such officers, and by them paid into the Treasury." (Act Sept. 24, 1879, sec. 35, 1 Stats., 92; act March 3, 1863, sec. 13, 12 Stats., 741.)

"SEC. 989. When a recovery is had in any suit or proceeding against a collector or other officer of the revenue, for any act done by him, or for the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty, and the court certifies that there was probable cause for the act done by the collector or other officer, or that he acted under the directions of the Secretary of the Treasury, or other proper officer of the Government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the Treasury. (Act March 3, 1863, sec. 12, 12 Stats., 741.)

"SEC. 3220. The Commissioner of Internal Revenue, subject to regulations prescribed by the Secretary of the Treasury, is authorized, on appeal to him made, to remit, refund, and pay back all taxes erroneously or illegally assessed or collected, all penalties collected without authority, and all taxes that appear to be unjustly assessed or excessive in amount, or in any manner wrongfully collected; also to repay to any collector or deputy collector the full amount of such sums of money as may be recovered against him in any court, for any internal taxes collected by him, with the cost and expenses of suit; also all damages and costs recovered against any assessor, assistant assessor, collector, deputy collector, or inspector, in any suit brought against him by reason of anything done in the due performance of his official duty: Provided, That where a second assessment is made in case of a list, statement, or return which in the opinion of the collector or deputy collector was false or fraudulent, or contained any understatement or undervaluation, such assesment shall not be remitted, nor shall taxes collected under such assessment be refunded, or paid back, unless it is proved that said list, statement, or return was not false or fraudulent, and did not contain any understatement or undervaluation." (Act July 13, 1866, sec. 9, 14 Stats., 111; act Dec. 24, 1872, sec. 1, 17 Stats., 401; act June 30, 1864, sec. 44, 13 Stats., 240; act March 3, 1865, sec. 3, 13 Stats., 483.)

DECISION BY WILLIAM LAWRENCE, First Comptroller:

The Government is, for several reasons, not liable to pay the judg ment in this case:

I.-Notice of the pendency of the suit, in which judgment was rendered, to the attorney of the United States, in due time to enable him to make defence, was requisite to fix a liability against the Government. If the plaintiff desired to avail himself of such liability, he might have given the notice. If the defendant desired to be reimbursed for any

judgment against him, he might have given the notice. If the attorney of the United States, by any means, knew of the commencement of such suit, even without notice by a party, such knowledge may be considered as equivalent to notice. (Jones vs. Vanzandt, 2 McLean R., 611.)

1. It cannot be presumed that the notice was given. The law does not require the notice to appear of record. It is a matter resting in pais, and hence must be proved. (Sallu's case, 1 Lawrence, Compt. Dec., 223; Cooley, Const. Lim., [17 n,] 4th ed., 23.)

It cannot be presumed that the attorney for the United States knew of the pendency of the suit and refused to appear therein, for that would be to presume that an officer neglected his duty. The law presumes that every officer does his duty. (Wade on Not., sec. 1302; Russell vs. Beebe, Hemp., 704; Dunlop vs. Munroe, 1 Cr. C. C., 536; Bottomley vs. United States, 1 Story, C. C., 145.)

2. On the plainest principles of justice this notice or knowledge is necessary. The idea that the United States, or any party interested in a suit, can incur a liability without an opportunity to appear and defend, is abhorrent to all reason. To so hold would enable parties to a suit, by collusion and fraud, to charge the Government with the payment of vast sums without any liability in reason or law. It would defeat the evident purpose of the statute, which was to protect officers by a defence made by the proper district attorney, in order to save the Government from any unlawful or unreasonable charge, and to prevent collusions by which fraudulent claims might result in judgments. Sections 771 and 989 are in pari materiâ; they are to be construed together; and the plain intent of Congress is to be carried out.

Why provide by law that the district attorney shall "appear in behalf of defendants," if parties in interest are not obliged to give him such notice as will enable him to appear?

The parties to the action must know of its pendency; the attorney of the United States does not necessarily have such knowledge.

3. There is abundant authority for requiring the notice to the attorney of the United States.

Under the statute, the Government occupies the position of giving an obligation of indemnity that the officer sued shall be repaid the "full amount of such sums of money as may be recovered against him.” The Government is an indemnifier, or indemnitor, if words unknown to Webster may be used. The obligation is collateral. It is well settled that a guarantor is only liable when duly notified by the principal debtor of every fact known to him, and not known to the guarantor,

necessary to make defence against the liability. On principle, an indemnitor is entitled to the same notice. (Wade, Law of Not., sec. 389, Chicago ed., 1878; 2 Graham & Waterman, New Trials, 139; Supervisors vs. Briggs, 2 Denio, 26; s. c., 2 Hill, 135; Russell vs. Clark, 7 Cr., 69; Clark vs. Carrington, 7 Id., 322; Cremer vs. Higginson, 1 Mason, 323; Sallu's case, 1 Lawrence, Compt. Dec., 223; Hutz rs. Karthause, 4 Wash. C. C., 6; P. M. Gen. vs. Ustick, Id., 348; 9 Wheat., 720; 11 Id., 184; Wells, Res Adjudicata, ch. XIV, p. 155, secs. 183, 186; Duffield vs. Scott, 3 T. R., 374; Smith's Lead. Cas., 139; 2 Greenleaf, Ev., sec. 116.)

Wells says that "as against the principal, a surety is only concluded by a judgment rendered in a suit which he had an opportunity to defend." (Thomas vs. Hubbell, 15 N. Y., 407; s. C., 35 Id., 120; Annett cs. Terry, Id., 256; State vs. Jennings, 14 Ohio St., 76; Kip vs. Brighan, 6 Johns., 159.)

A guarantor may even control a suit against the principal when the latter refuses to make defence. (People vs. Irving, 1 Wend., 20.) In Duffield vs. Scott, 3 Term R., 377, it is said that—

"The purpose of giving notice is not in order to give a ground of action; but, if a demand be made which the person indemnifying is bound to pay, and notice be given to him, and he refuses to defend the action, in consequence of which the person to be indemnified is obliged to pay the demand, that is equivalent to a judgment, and estops the other party from saying that the defendant in the first action is not bound to pay the money."

4. There is another ground upon which notice is requisite. The acceptance by the claimant in the judgment, and by the officer sued, of the guaranty and indemnity offered by the Government is essential to create a liability against the latter. No law compels such acceptance. Neither party in interest may desire it. They may refuse it for the very purpose of securing the privilege of having a suit conducted without the intervention of the attorney of the United States. Notice is essential as evidence of the acceptance. (Brandt on Suretyship and Guaranty, secs. 157, 175; Edmonston vs. Drake, 5 Pet., 624; Douglass rs. Reynolds, 7 Id., 113; Lee vs. Dick, 10 Id., 482; Adams vs. Jones, 12 Id., 207.)

The liability of the Government arises not at common law, but by statute. Every step contemplated by the statute is requisite to create the liability. The statute is to be strictly construed and literally and fully pursued; otherwise the liability does not arise. These are prin. ciples so familiar as scarcely to require a citation of authority. (2 Inst., 388; Dwarris, Stats., 611; Commonwealth vs. Justices, 5 Mass., 436.)

The Government stands towards the plaintiff in the relation of one who guarantees or makes good all that has been lost. The same principle of notice applies in such case.

"It is believed to be a universal principle that no man ought to be bound by a judgment where he had no notice of the proceedings or any opportunity to defend himself. To hold otherwise would be contrary to every maxim of justice." (Joslin vs. Coffin, 5 How., Miss., 539; Garner vs. Carroll, 7 Yerg., 365.)

The Government can only be held liable by "due process of law," or upon such conditions as the law prescribes; and where a condition requires judicial action to render the Government liable, notice of the action is essential. (Sallu's case, 1 Lawrence, Compt. Dec., 223; 15 Op. Att.-Gen., 578; Florida vs. Georgia, 17 How., 478; Darling vs. Gunn, 50 Ill., 424; Ray Co. vs. Barr, 57 Mo., 290; Com'rs vs. Claw, 15 Johns., 537; Adams vs. Oaks, 20 Id., 282; Peters vs. Newkirk, 6 Cow., 103; Elmendorf vs. Harris, 23 Wend., 628; Martin's case, 1 Ohio, 156; Patterson vs. Prather, 11 Id., 35; Hambleton vs. Dempsey, 20 Id., 171; Reynolds vs. Stansbury, Id., 353.)

Res inter alios acta alteri nocere non debet. (Broom, Leg. Max., 333, 954; Wing., Max., 327.)

"A transaction between two parties in judicial proceedings ought not to be binding on a third, for it would be unjust to bind any person who could not be admitted to make a defence." (Broom, Leg. Max., 955; Ray Co. vs. Barr, 57 Mo., 290; Wade, Law of Not., sec. 1184; Haley vs. Williams, 8 S. & M., Miss., 487.)

It must be presumed that the neglect to give notice was prejudicial to the United States. (Wade, Law of Not., sec. 417; 9 S. & R., 198; 59 Pa. St., 178; 71 Id., 100; 25 Mich., 351; 33 Ia., 293; Breedlove vs. Nicolet, 7 Pet., 434.)

5. If a revenue officer, sued for an official act, employ his own attorney to defend, and excuse or exclude the attorney of the United States from the management of the defence, the Government is not liable, on the application of such officer, to pay any judgment therein rendered against him. By taking such a course, he waives his remedy against the Government. The effect of the statute is to create a liability against the Government sub modo, on condition that its authorized attorney be permitted to appear and make defence. The Government is entitled to the protection afforded by the skill of its attorney. When, as in this case, an attorney of record appears for the defendant, and there is nothing in the record to charge the attorney of the United States with knowledge or notice, it may well be inferred that the defendant waived any claim to indemnity by the United States.

The officer against whom the judgment was rendered is not, in fact, asserting any claim for payment of the judgment.

II. There is no valid application for the payment of the judgment. The application therefor to the Commissioner of Internal Revenue is made by one of the attorneys of record of the plaintiff in the suit. The plaintiff has "fled the country;" he does not ask for payment, and has not given a power of attorney to any one to act for him in this application. Unless one of the two attorneys of record in the judgment has, by virtue of his position as such, the right to make the application, the latter is clearly unauthorized.

An attorney-at-law is, as such, an officer of the court in which he is admitted to practice. His office as such exists at common law; and in some of the States it is recognized and regulated by statute. No act of Congress defines the qualifications of an attorney; but the courts of the United States have always properly asserted the common-law power to admit persons duly qualified to practice, and to suspend and otherwise punish them for contempt or other flagrant misconduct. If the attorney violate or neglect his duty, the court has jurisdiction over him to command or punish; and, being its sworn officer, it may proceed against him in a summary manner. The Treasury Department has not such jurisdiction over attorneys or agents who prosecute claims before it. Here, the relation subsisting between a claimant and his attorney is that of principal and agent, rather than that of attorney and client in proceedings in court. The latter relation cannot exist in any matter unconnected with an existing or contemplated power of a judicial tribunal to supervise the conduct of the attorney, and afford redress to the client in case of his misconduct. The authority of an attorney-at-law to appear in a cause is generally presumed by the court, unless the contrary appear; and such authority continues until final judgment. (Richardson vs. Talbot, 2 Bibb, Ky., 382; Jackson vs. Bartlett, 8 Johns., 361; Hinkley vs. St. Anthony's Falls, &c., Co., 9 Minn.; Kamm rs. Stark, 1 Sawyer, 547; Wade, Law of Not., sec. 1323.)

His authority for the purpose of causing execution to issue continued at common law for a year and a day after entry of judgment, unless the latter were in the meantime satisfied, or the authority were determined by some act of his client. (Nichols vs. Dennis, Charl. Ga., 188; Gray 78. Wass, 1 Maine, 257; Flanders vs. Sherman, 18 Wis., 575.)

Under a general retainer to prosecute or defend an action, the attor ney is authorized to prosecute or defend for the purpose of obtaining a final judgment in the cause. His authority is not presumed to extend beyond the termination of the suit. Upon entry of judgment he