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

The first regulation provides for change of attorney, with consent of Department. This is expressly confined to claims prosecuted in the Department, and in those, this provision shows an intention and practice to deliver the draft to the attorney, acting as such at the time of payment.

"On general principles, a claimant has a right at any time to revoke the authority of his agent or attorney engaged in prosecuting a claim in the Treasury Department. The claimant may become thereby liable to an action by the attorney for any breach of the contract of employment, but this does not affect the power to revoke the authority of the attorney in any case, unless such power be affected by a regulation of the Treasury Department" (3 Lawrence, Compt. Dec., 314).

But the case at bar comes under the second regulation for cases certified by the Court of Claims, etc. Here no provision is made or necessary for change of attorney, as "the attorney of record shall be regarded as such by this Department." The appointment or recognition of attorneys in such cases, and their rights to collect claims, are left wholly to the court or commission-the Department accepting its certificate as conclusive.

Will the Department then, having no power to change the certificate of the court, as to who is the attorney of record-recognize an outside uncertified party, as entitled to the rights of the certified attorney to receive or control this draft?

Second. If the Department can do so in any case, has Mr. Manning, in this case, sustained the burden of showing sufficient cause for a departure from the practice of the Department, and for a special order, delivering the draft to him, or withholding delivery from the certified attorneys?

We submit not.

We assume that the Department will not order delivery of the draft to Mr. Manning. Such an order would be entirely novel in practice, would work grave injustice to the estate, by placing its entire judgment in the hands of a hostile party, and to the attorneys of record, entitled, under the certificate of the court and practice of the Department, to receive the draft earned by their services-and would embarrass the Government, by subjecting it to a possible suit, in the Court of Claims, by the administratrix, upon the judgment recorded against it.

We further assume, that the Department will not-contrary to the practice established and confirmed by its law officers and the AttorneyGeneral-adjudicate upon the relative rights and claims of the parties under the power of attorney and agreement for fees, and by division of the draft, or otherwise, judicially decide what sum is due to Mr. Manning, as unliquidated damages, for the alleged breach of contract.

The only other "special order" possible, will be for the retention of the draft in the Department. Such retention must be for the purposeeither of compelling the administratrix to settle Mr. Manning's claimor of securing the payment of such claim, after adjudication, by the proper tribunal.

1. To retain it for the former purpose, is to assume that his claim is valid against the estate, and should be paid, without allowing the administratrix her undoubted right of contesting it, before court and jury. The Department must either assume the judicial function of hearing and deciding the rights of the parties, inter sese, under the alleged personal agreement between them-or else decide them without hearing, and by depriving the administratrix of her judgment, costing her the loss of interest upon it-oblige her, practically, under duress, to accept its decision.

2. Nor should the draft be withheld for the purpose of securing payment of Mr. Manning's claim, after judicial determination.

(a) Mr. Manning has already ample security for any claim due from the owner of the draft. It belongs solely to the estate, and must be first appropriated to meet claims against it. The administratrix is under bond, with ample sureties, so to appropriate it.

(b) He has no right to the security asked. His claim must be in assumpsit for damages, for breach of an alleged agreement to employ him as attorney. These damages are unliquidated. To secure such claim by retention of the draft is to establish the principle, that any alleged creditor of a party, in whose favor judgment against the United States has been rendered and certified, can secure his claim by, in effect, garnisheeing the United States. The Department would assume the novel position of refusing to pay a judgment-creditor of the United States, until satisfied that such creditor had paid his private indebtedness.

Moreover, Mr. Manning's claim must be against the parties to the agreement; if under any liability, it is a joint liability. How can the Department secure his claim, even if reduced to judgment, against several joint contractors interested as distributees in an estate, by withholding a draft payable only to the administratrix in her trust capaсity?

Again, even after an adjudication of the liability of these parties to Mr. Manning, the question of title to the draft must remain. A Court can decide only whether the parties are indebted to Mr. Manning, and settle the amount of debt. It will have no jurisdiction to decide the latter's claim upon, or right to receive, the detained draft. The Department must even then, on its own responsibility, the draft to Mr. Manning, or divide it, or continue to retain it until satisfied the private indebtedness of the parties, against whom Mr. Manning obtains judgment, is paid. Neither course is in accord with the law and practice of the Department.

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(c) Any detention of the draft is a great injustice to the administratrix of the estate.

Interest upon it, at 6 per cent., amounts to $450 per month, and this is lost to all parties during detention. No limit can be fixed to the detention for the purpose of securing Mr. Manning. He is the party to commence suit, he can refuse to do so at all, or delay doing so at his convenience.

(d) An order for the detention of the draft, therefore, practically obliges the administratrix to pay Mr. Manning whatever he pleases to claim, and deprives her of her constitutional right and duty in her trust capacity to have a judicial trial upon the respective rights of the parties. A suit by Mr. Manning, under these agreements, will involve questions of law and fact, and its final determination cannot be expected for perhaps some years. In the mean time, the estate will lose $450 a month interest, amounting, in eighteen months, to the whole amount of Mr. Manning's claim. The duress which the Department is asked to exercise would be effective, and the administratrix, to save the estate from loss (inevitable, whatever might have been the result of a suit by Mr. Manning), would be forced to compromise, without litigation, on his own terms.

We submit, therefore, that the case should be governed by the general regulations and practice of the Department, and that no reason appears why, by special order, the Department should deliver this draft to Mr. Manning, or withhold delivery from the attorneys of record, and, by detention, work so great an injustice to the judgmentcreditor of the Government, and so much embarrassment to itself.

If, however, the case calls for any special order-such order should provide merely for the immediate delivery of the draft directly to the administratrix of the estate, as the Government creditor, recognizing no attorney as entitled to it, but leaving all parties claiming rights as attorneys to enforce them against the estate. As attorneys of record, we agree to such special order.

DECISION BY WILLIAM LAWRENCE, First Comptroller.

The Secretary of the Treasury is authorized by statute to prescribe regulations not inconsistent with law, for the performance of the business of the Treasury Department (Rev. Stat., 161). This statute is merely declaratory, since, without it, the power to prescribe such regulations is an incident of the general duties of the Secretary (Rev. Stat., 248-267; The United States v. Mann, 2 Brock., 9). "In statutes, incidents are always supplied by intendments" (Potter's Dwarris, Stat., 123, citing 2 Inst., 306; 12 Rep., 130, 131). The payment of claims against the United States is a part of the business of the Treasury Department, and is, therefore, a proper subject for regulations. The Secretary has, by a regulation-which has been quoted in the argument in this case, and has the force of law-provided, that, in cases certified for payment to the Treasury Department "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 this Department, and be entitled to receive the drafts in such cases" (Dunnegan's case, 2 Lawrence, Compt. Dec., 2d ed., 96, 97; Di Cesnola's case, Id., 146, 163; McAllister's case, Id., 170). A subsequent regulation declares that:

"The accounting officers will decide what persons as attorneys or claimants are entitled to receive drafts under the rules of the Department." * (1d.)

These regulations grow out of the mode of paying claims against the United States. The usage is, as to claims certified for payment by the First Comptroller, that he inserts in the Treasury warrant authorizing payment, a direction to the Treasurer, to deliver to the proper claimant, or his attorney specified, the Treasury draft issued to make payment. Thus, the question is now to be decided by the First Comptroller: to whom shall the Treasurer deliver the draft in this case? And it is clear that, if the general usage, based on the regulations mentioned, is to prevail, the draft must be delivered to the attorneys of record-C. T. and T. H. Russell. It is claimed, however, that this is a case in which a "special order" should be made in favor of Manning. The authority

* As to the authority of the First Comptroller to give directions concerning the payment of money in certain cases, see United States v. Giles et al. (9 Cranch, 212), and McAllister's case (2 Lawrence, Compt. Dec., 2d ed., 168).

and by depriving the administratrix of her judgment, costing h loss of interest upon it-oblige her, practically, under duress, to. its decision.

2. Nor should the draft be withheld for the purpose of securi ment of Mr. Manning's claim, after judicial determination.

(a) Mr. Manning has already ample security for any claim the owner of the draft. It belongs solely to the estate, and mu appropriated to meet claims against it. The administratrix bond, with ample sureties, so to appropriate it.

(b) He has no right to the security asked. His claim mus sumpsit for damages, for breach of an alleged agreement to as attorney. These damages are unliquidated. To secure by retention of the draft is to establish the principle, that creditor of a party, in whose favor judgment against the has been rendered and certified, can secure his claim by. nisheeing the United States. The Department would as position of refusing to pay a judgment-creditor of the until satisfied that such creditor had paid his private in

Moreover, Mr. Manning's claim must be against the agreement; if under any liability, it is a joint liability Department secure his claim, even if reduced to judgn eral joint contractors interested as distributees in a holding a draft payable only to the administratrix i ity?

Again, even after an adjudication of the liability Mr. Manning, the question of title to the draft must can decide only whether the parties are indebted to settle the amount of debt. It will have no jurisd latter's claim upon, or right to receive, the detai. partment must even then, on its own responsibili: the draft to Mr. Manning, or divide it, or contin isfied the private indebtedness of the parties, a ning obtains judgment, is paid. Neither cours law and practice of the Department.

(c) Any detention of the draft is a great inju trix of the estate.

Interest upon it, at 6 per cent., amounts to > is lost to all parties during detention. No lin tention for the purpose of securing Mr. Mann commence suit, he can refuse to do so at all. convenience.

(d) An order for the detention of the obliges the administratrix to pay Mr. Manni claim, and deprives her of her constitution trust capacity to have a

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er centum or a specific sum his services in securing pay› far as Manning's contract is gment, or fund arising theregeneral creditor of the estate of ever, that, on general principles udgment, and its proceeds, which omptroller. If, under a valid conof the decedent, Manning rendered onal or political "influence," somerocuring legislation under which the he is, as a general creditor of the esWhether for such services, as distinct dicial proceedings, a lien, which courts. In this case, it is not necessary to decide.*

nell (12 Federal Reporter, 515, 517, 518) it appeared, been rendered for the plaintiffs, they moved the the attorney of record. That was a case in which reed with one Douglass, that the latter, who was not ecute said suit by such attorney as he might employ I be paid for his services a sum equal to one-half of e, said that:

ght to collect the judgment themselves, and for that orney as they desire. If Douglass had been an

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I services would have created a lien. to determine now, or by any proceeding which cannot be e lien to which the executrix is entitled. But for present that she is not to be turned over to a suit at law, to receive ation at the end of litigation, to which she is entitled now en. It may be the plaintiffs have equities and legal rights > not been impressed, and from which they should not be the present decision. It may ultimately appear that the exIve the whole compensation contemplated by the agreement; rest upon the plaintiffs, who are seeking to dispossess her of a 18 not entitled to the sum which they promised to pay when established.

dered, that the plaintiffs' motion be granted upon the payment to glass of one-half of the amount of the judgment, without prejthe plaintiffs to recover at law if they can show themselves enim, or such part thereof as may be just."

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