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shall be made." This is not the exclusive remedy of any attorney to secure compensation for his services. Said act is not a negative statute, and, hence, does not repeal the common law or other statutory remedies, which any attorney may have. They are concurrent (Bishop, Written Laws, 163-164; Sedgwick, Construction Stat. and Const. L., 2d ed., 31; Potter's Dwarris, Stat., 74; Maxwell, Stat., 2d ed., 186; Hardcastle, Statutory Law, 167-170). The statute does not create the right of any attorney to compensation. Such right exists by contract, express or implied, at common law. It is only when a statute creates a right and provides the means of enforcing it, that the statutory remedy so provided is exclusive (Haycraft v. United States, 22 Wall., 81; s. c., 10 Ct. Cl., 95; The State of Ohio ex rel. Grisell v. Marlow, 15 Ohio, St., 114; Bachman v. Lawson, 109 United States, 660; Pugh v. United States, 13 Wall., 633). A statute, in giving a statutory action or remedy, may, of course, take away the common-law right of action (when not protected by the Constitution), of an attorney to sue for his compensation; but no statute has done this. As stated, the attorneys of record, therefore, have not waived their right to the custody of the draft in this case. No attorney has waived any common law or statutory right. No reason is perceived why the draft should be delivered to attorneys not of record, to the exclusion of those whose right is clear, and undisputed by the judgment-creditor. In some cases, when a dispute arises as to which of two parties is the owner of an entire claim, or is entitled to receive and indorse a draft, the United States may file a bill of interpleader, to require them to go into court to have their legal, or even equitable rights, determined (3 Lawrence, Compt. Dec., Introduction, XXXIX; 5 Op. Att.-Gen., 671). But no such question is now presented. There is no ground upon which the Department would be justified in withholding payment of a portion of the judgment mentioned-as 9 per cent. thereof-to await a litigation between Manning and the administratrix of the decedent. If this course were authorized, there is no allegation that the estate of the decedent is insolvent; and, hence, it is not to be assumed that such course is necessary to secure the rights of Manning. A court will not take possession of any part of the fund in favor of Manning, unless he has a lien on it; and if so, he may properly be left to his remedy there. No reason is shown for the interference now asked. It cannot be assumed, that the attorney who now asks for a "special order" cannot secure an ample remedy in the courts, either against the legal representative of the decedent, or against the distributees of the estate who are parties to the contract with such attorney.

The order is, therefore, that the draft in payment of the judgment in this case be delivered to the attorneys of record.

TREASURY DEPARTMENT,

First Comptroller's Office, January 1, 1885.

NOTE BY FIRST COMPTROLLER.

The following contains valuable information in relation to the "receipt and investment of the Geneva award money":*

CHAMBERS OF THE COURT OF CLAIMS,
Washington, D. C., June 22, 1882.

MY DEAR SIR: The circumstances connected with the payment of the Geneva award by Great Britain to the United States and the investment of the money received, about which you inquire in your letter of the 17th instant, are quite fresh in my memory, although they took place nearly nine years ago. The importance of the transaction, and the interest manifested by the public at the time, as to how the transfer from London to Washington of $15,500,000 in gold coin, weighing more than twenty-eight and a half tons, was to be accomplished, and its probable effect upon business, served to impress the details upon my mind.

It was provided by the treaty that, "In case the tribunal find that Great Britain has failed to fulfill any duty or duties as aforesaid, it [the tribunal] may, if it think proper, proceed to award a sum in gross to be paid by Great Britain to the United States for all the claims referred to it; and in such case the gross sum so awarded shall be paid in coin by the Government of Great Britain to the Government of the United States, at Washington, within twelve months after the date of the award." (17 Stat., 866.)

In September, 1872, the Arbitrators awarded "to the United States a sum of $15,500,000 in gold, as the indemnity to be paid by Great Britain to the United States, for the satisfaction of all the claims referred to the consideration of the tribunal, conformably to the provisions contained in Article VII of the aforesaid treaty."

The amount awarded became payable in September, 1873. By act of March 3, 1873 (17 Stat., 601), Congress provided that "immediately upon the payment of the sum of money awarded to the United States by the Tribunal of Arbitration at Geneva, to be paid by the Government of Great Britain, the same shall be paid into the Treasury, and used to redeem, so far as it may, the public debt of the United States. And the amount equal to the debt so redeemed shall be invested in the five per cent. registered bonds of the United States to be held subject to the future disposition of Congress." During the spring and summer of that year, there was manifested through the public press, and otherwise, much anxiety among the bankers and business men of the country, especially in the great financial and commercial center, New York city, lest the transfer at one time of so large an amount of gold might seriously affect and disturb, temporarily, the exchanges and other business relations between this country and Europe. To avoid this anticipated difficulty was a matter of serious consideration. A plan was adopted and successfully carried out, through which the whole amount was paid and invested without making the slightest impression upon the money market or the business of either of the two countries concerned, for a single day.

At that time the Treasury Department was engaged in calling in for redemption the six per cent. bonds of the United States, and paying for them with the proceeds of the sale of the five per cent. bonds of the funded loan, under the act of July 14, 1870 (16 Stat., 272.) For that purpose it had an agency in London, conducted exclusively by officers of the Department who had been sent out from Washington. This agency was made use of to facilitate the receipt and investment of the Geneva Award money. On June 6, 1873, a call was issued by the Secretary of the Treasury for the redemption of twenty million five-twenty six per cent. bonds of the loan of 1862. It was the fifth call for the redemption of bonds, and matured September 6, 1873, three months from the date of its issue, in accordance with the terms of the act of July 14, 1870. Four and a half million bonds beyond the amount required for investment of the award money were called, because it had been found by experience that many bonds of every call were not sent in promptly for redemption, but were held by the owners, through want of information or otherwise, until long after maturity of the call. It was thought that of twenty million the fifteen and a half million would be redeemed within the three months.

Most of the coupon bonds of that loan were held in Europe and could be purchased in or through the London market. On the day of the issue of this call, instructions were forwarded to the Treasury agents in London, that if parties desired to deposit with them called bonds, or matured coupons (which were practically the same as coin) to the credit of persons in this country, to be applied in payment of money payable to the United States on or after the time of the maturity of the call of that date, they might receive the same, and telegraph, from time to time, the amount so received, and the names of the parties to whose credit the deposits were made. The bonds and coupons were to be

Mr. Hackett's volume, entitled "The Geneva Award Acts, with notes and references to Decisions of the Court of the Commissioners of Alabama Claims," was published by Little, Brown & Co., Boston, Mass., in 1882.

canceled and forwarded to the Treasury Department at Washington at the earliest possible moment after receipt. The account was not to be mingled in any way with that of the receipt of bonds and coupons in connection with other funding operations. The amounts payable on account of such deposits were to be accounted for and settled by the Treasurer of the United States, at Washington.

At the same time, the parties who were understood to be employed by the British Government to make the transfer of the Geneva Award money were notified of these instructions, as were also the public through the journals of the day. Thereupon those parties commenced buying called bonds and matured coupons and turning them over to the Treasury agents in London. Before the expiration of three months, when the award money became payable, they had deposited in the United States Treasury, either directly or through the London agency, the whole fifteen and a half million dollars, and had taken coin certificates for the payment of the same, in different sums, from time to time, as the deposits were made, instead of drawing the coin from the Treasury in payment of their bonds and coupons.

On September 9, 1873, all these certificates were returned and canceled, and one coin certificate for the full amount was issued to the depositors, and made payable to their order. This they indorsed "to the joint order of H. B. M. Minister or Chargé d'Affaires, at Washington, and Acting Consul-General at New York." Those officers, Sir Edward Thornton, Minister, and Mr. Archibald, Consul-General, indorsed the same to the Honorable Hamilton Fish, Secretary of State, at the State Department in Washington, in payment of the Geneva Award; and payment was thus consummated. Mr. Secretary Fish then indorsed and delivered this certificate to the Secretary of the Treasury, who issued to him therefor one five per cent. registered bond of the funded loan for the whole amount. There were no engraved bonds of that denomination, of course, and the one delivered was elegantly written out with a pen, in exact similitude, ornamentation and all, with the engraved bonds of the same loan. This bond has been photographed at the Treasury Department, and many copies have been called for and furnished to persons who desire to preserve them as curiosities connected with a great historical event-the settlement of the "Alabama Claims."*

Thus you will see that the whole business was done without the payment of actual coin into the Treasury. The bonds and coupons in Europe were bought up with money paid there, not by the United States Government, and, together with those deposited here, were redeemed without the payment of money, but by the issue of coin certificates, which were paid or redeemed in a bond of the funded loan. The transaction was carried on so gradually, extending over a period of three months, that its effect upon exchange or business was too insignificant to attract notice of any kind, if, indeed, it had any effect whatever upon either the one or the other.

As to the arrangements between the British Government and the parties whom it employed to make the transfer of the money from London to Washington, or among those parties themselves, the Treasury Department here had no concern and no knowledge. The United States employed nobody in the business outside of their own officers, and they paid nothing to any one on account of it. They profited by the operation in funding fifteen and a half million dollars of bonds drawing six per cent. interest into a bond drawing only five per cent. interest, and this they did without paying commissions or incurring any expenses whatever.

All these facts are matters of record in the Treasury Department, and I have stated only what can be found there by diligent search among the immense archives of that great Department.

I am, very respectfully and truly, yours, &c.,

FRANK W. HACKETT, Esq.,

Washington, D. C.

WILLIAM A. RICHARDSON.

*Copies of this bond and the certificate of deposit, with the indorsements thereon, are given in Mr. Hackett's book.

IN RE ACCOUNT OF DISTRICT ATTORNEY UNDER SECTIONS 824 AND 838 OF THE REVISED STATUTES, AND THE ACT OF FEBRUARY 22, 1875 (18 STAT. 333). IN THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI, NOVEMBER TERM, 1884.-EXAMINATION-FEE CASE.*

I. It has been held by the Secretary of the Treasury that he will not approve any claim of a United States District Attorney for compensation under section 838 of the Revised Statutes in any case not "tried or disposed of," before the proper judge. Hence, when no prosecution is instituted, compensation cannot be allowed for "inquiry and examination" by a United States District Attorney to determine whether cases reported to him by collectors of internal revenue for violations of internal-revenue laws shall be prosecuted in court. (District Attorney's case, 5 Lawrence, Compt. Dec., 138.) This ruling of the Secretary was different from an opinion expressed, rather than decided, in Connolly's case, 4 Lawrence, Compt. Dec., 45. The same question arose in the District Court of the United States for the Eastern District of Missouri, and it was, by Treat, Judge, held:

(1) When any collector of internal revenue reports to a United States District Attorney according to law (Rev. Stat., 838) any case in which any fine, penalty or forfeiture has been incurred in any district of such attorney for the violation of any law of the United States relating to the revenue, and such attorney upon inquiry and examination shall decide that proceedings cannot be sustained, or that the ends of public justice do not require that such proceedings should be instituted, such attorney is entitled to receive, and be paid from the Treasury such sum as the Secretary shall deem just and reasonable upon the certificate of the proper judge for expenses incurred and services rendered in all such cases.

(2) Under the act of February 22, 1875, (18 Stat., 333) all accounts for fees, etc., whether under sections 824 or 838 should be considered within its provisions.

TREAT, DISTRICT JUDGE.—An account of the U. S. District Attorney is presented for the certificate of the Judge, under Section 838, as to certain cases enumerated.

Under Section 824 his fees in most cases become certain, as the Court records show; yet there are many concerning which evidence dehors the Court records is necessary, viz:-presence before Commissioners, travel, etc., etc.

It is important to look at the dates of the statutes so that the imperfections or mischiefs to which later statutes are aimed, may furnish guides for interpretation. Under Section 824, (looking to the dates of the acts consolidated,) the District Attorney was allowed fees only in cases actually instituted in the Court, or with respect to proceedings before U. S. Commissioners and attendant travel.

It became apparent to this Court, years ago, that such proceedings before U. S. Commissioners were liable to abuse, involving injury to parties proceeded against, and instituted, it might be, to give fees to Deputy Marshals and Commissioners, and involving unnecessary fees

*This case should be read in connection with Keasbey's case, 1 Lawrence, Compt. Dec., 2d ed., 172; Leake's case, 2 Id., 445; Connolly's case, 4 Id., 45, and District Attorney's case, 5 Id., 138.

and travelling expenses for the District Attorney. Hence the following rule of Court was made; and later the proper Department suggested a like rule for all U. S. Courts:—

In every criminal proceeding before a United States Commissioner, he shall, before issuing subpoenas for the hearing of the case, cause the proper United States District Attorney to be informed thereof, and await a reasonable time his action with reference thereto; and when the commissioner has disposed of the case, he shall cause the original complaint together with a brief statement of his action thereunder and the original recognizance, if any, and copy of the commitment or mittimus, duly certified, to be promptly filed in the clerk's office of the proper United States Court. And before taking bail, when the prisoner is held for the action of the grand jury, the commissioner should cause notice of the time and place for hearing the application for bail, to be given to the District Attorneys.

In the ordinary administration of the law, when complaints were made, the District Attorney was bound to act thereunder, by refusing to proceed thereon, or by causing examination to be had before Commissioners, etc. If he was of opinion that the complaint was groundless, it was his duty to proceed no further. It is true, that a large measure of responsibility was thus cast upon him; yet as he represented the Government that prosecutes offenses, and never persecutes the innocent, the duty to determine when complaints were frivolous, or otherwise, rested primarily with him. Were not this so, he would make, through his office, the Government the agent of private malice or of blackmail. There must be in the very nature of judicial administration, preparatory examinations by the District Attorneys as to private complaints; otherwise the innocent as well as the guilty would be alike confounded in indiscriminate prosecutions at the instigation of those who have only personal ends to subserve. As the law then stood, and now stands, the accused, however wronged, pays his own costs and expenses; so that it often happens that the innocent, when acquitted, suffers more than the guilty. Such a condition of affairs caused this and other Courts to exact careful scrutiny from the District Attorneys prior to prosecutions before Commissioners or the Court.

But under the revenue systems Collectors undertook to discriminate in cases of violations of law, and on their judgment reported or refused to report alleged offenses. They made themselves, thereby, judges in a modified sense, of said offenses. Congress cut up (Section 838) such arbitrary power, or conduct, by requiring all such matters to be reported to the District Attorney. On the incoming of such reports, it was made the duty of the District Attorney, to examine the same, and institute proper proceedings in Court, "unless upon inquiry and examination, he shall decide that such proceedings cannot probably be sustained, or that the ends of public justice do not require that such proceedings be instituted." This statutory rule sought to enforce elemental principles, coupled with an obligation upon revenue officers to report to the district attorney.

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