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VIII. The attorney of record did not avail himself of his right to have the Court determine and provide for his fees, and thereby waived his privilege, and stands in no better position than any other attorney rendering service in respect to said claim. See sec. 1, act June 5, 1882. See the case of Haycraft v. United States (22 Wall., 81), which was a claim against the United States under the so-called "captured and abandoned property act," on page 98, in the opinion by the Chief Justice, as follows, to wit: "But the same statute which authorized the capture gave the right to certain persons to demand and receive the restoration of their property taken. Coupled with the right to demand was the provision for the remedy by which it was to be enforced. Both the right and the remedy are, therefore, created by the same statute, and in such cases the remedy provided is exclusive of all others. The demandant in this case neglected to avail himself of the remedy provided, and, consequently, is now without any. That remedy, therefore, is the only one of which the Court of Claims, or any other court, has been authorized to take jurisdiction. It is for Congress, not the courts, to determine whether this jurisdiction shall be extended and other remedies provided."
Apply the rule here announced to the case at the bar, and what is the result? The administratrix had the right to invoke the aid of the court to protect the estate against the claim of the said Manning, but failed so to do. The Court of Commissioners of Alabama Claims being a Court of limited jurisdiction and limited life, and the claimants having no right of tribunal other than this, but having a special right of recovery in that Court, and all rights and remedies connected with the subject matter conferred in said act, it follows that all rights and remedies in reference to the same which were not sought in that tribunal are thereafter, by the rule set up in the Haycraft case, consequently lost to them.
C. T. and T. H. Russell, in behalf of themselves and of Eliza Mauran, administratrix, &c., also made oral arguments, and submitted a brief, as follows:
I. The draft in question was issued in payment of the judgment recovered by the legal representative of the estate of Suchet Mauran, 2d, and is, therefore, payable only to her. It belongs, as did the claim, solely to the estate, and not to any or all the distributees of the estate. It is part of the assets of the estate, and a trust-fund to be accounted for, by the administratrix, to the Probate Court, under her official bond, and then appropriated, by decree of Court, to payment of debts, if any remain, and to distribution among the distributees.
Mr. Manning has no interest in such draft, as attorney of record in the suit in which the judgment was rendered, for the record shows that he was not such attorney. His rights and interest depend, then, entirely upon the power of attorney and agreement presented by him.
But these instruments do not purport to be executed by the administrator of the Mauran estate. Being under seal, no agency or ratification can be shown, except by instrument, under seal.
II. Even if the alleged power of attorney had been executed by the legal representative of the estate, it cannot be recognized by the Treasury Department, under the act of February 26, 1853 (U. S. Rev. Stat., § 3477).
1. The claim for indemnity out of the Geneva Award for loss of the ship existed as a claim against the United States when the power of attorney and agreement are claimed to have been made. It was a chose in action and assets of the estate. This was decided by the Alabama
Claims Court in its elaborate opinion (French, J.), holding that assignees of claimants becoming bankrupt before the passage of the Act, and not the bankrupts, were entitled to the claims. And see, Phelps v. Macdonald (99 U. S., 298); Bachman v. Lawson (109 Id., 659); Comegys v. Vasse (1 Pet., 193); Erwin v. United States (97 U. S., 392); Leonard v. Nye (125 Mass., 455).
2. As such a claim, no power of attorney, coupled with an interest, can, under § 3477, be recognized by the Department. The statute must⚫ be regarded as mandatory (3 Lawrence, Compt. Dec., 126); and it "embraces every claim against the United States, however arising, of whatever nature it may be, and wherever and whenever presented The statute strikes down and denies any effect to powers of attorney, orders, transfers, and assignments, which before were good in equity, and which a debtor was bound to regard, when brought to his notice." (Strong, J., U. S. v. Gillis—95 U. S., 407, 413; Spofford v. Kirk—97 U. S., 484, 488.)
That such a power of attorney as this cannot be recognized by any Department of the Government was the express opinion of AttorneyGeneral Johnson in 1849 (5 Op. Att.-Gen., 85), and of Att.-Gen. Devens in 1879 (16 Id., 261.)
And the practice of this Department conforms to this rule (3 Lawrence, Compt. Dec., 13).
3. It is unnecessary to inquire into the effect of this statute upon the rights of the parties to the alleged power of attorney inter sese, as the present application of Mr. Manning, whether regarded as a claim to receive the draft, or that it be retained by the Department, is addressed to Government officials, and involves their decision upon the duty of the United States in the premises. Such decision must involve and depend upon the validity of his power of attorney, not as against the parties to it in a suit by him against them, but as against the Government holder of the draft. He, necessarily, from the fact that the application is addressed to, and must be decided by, the Department, seeks to enforce some right against the Government, and that right de pends wholly upon Government recognition of the power of attorney presented. The question then is not whether this power of attorney is binding upon the constituents, but whether it is binding upon the Government. If not binding on the Government, the Department cannot recognize it as a ground for controlling its action, or calling for its intervention.
"The power of attorney had at no time a legal existence, so far as it affected the claim of the contractor against the United States. He might at any time disaffirm it, and when he himself revokes it, as it had no legal existence, it seems to me that it is the duty of the United States to recognize that revocation and to deal with the power of attorney as if it had no actual existence. Undoubtedly, by concurrence of the parties, the United States might make payment under such power of attorney. Where there is concurrence, payment to an attorney is as good as payment to the principal; but, under this law, the principal is always to be regarded, and when he disavows the power of attorney it is not for the officers of the United States to consider whether that disavowal was rightful or wrongful. Such a course would necessarily lead to the ascertainment of the rights of the parties inter sese, which it is among the objects of the Statute to avoid by treating the claim of the contractor as the only one to be recognized by the United States." (Att.-Gen. Devens in 16 Op. Att.-Gen., 263.) And in that case the power of attorney was declared on its face irrevocable.
4. The Statute was enacted "to prevent frauds upon the Treasury of the United States " (Title, 10 Stats. at Large, 170). The first mischief designed to be remedied by the Statute is stated by Mr. Justice Miller, as "the danger that the rights of the Government might be embarrassed by having to deal with several persons instead of one, and by the introduction of a party who was a stranger to the original transaction" (Goodman v. Ñiblack-102 U. S., 556, 560).
III. But, even assuming that the alleged power of attorney was duly executed, and should be recognized as valid by the Government, it gives Mr. Manning no lien upon, nor interest in, this draft, nor right to receive or detain it.
1. Such power of attorney is merely a personal agreement between him and the parties to it to employ him as attorney to prosecute and collect the claim. For any wrongful refusal or failure so to employ him and allow him to act, his claim must be against them to recover unliquidated damages for breach of the agreement. Such claim would not be for compensation for services rendered, but for damages for refusal to allow him to render the agreed services.
No assignment of any part of the claim, or judgment to be rendered, or draft to be issued therefor, nor any interest therein, nor lien thereon, is given by the alleged power of attorney, or agreement for compensation. He was merely appointed attorney "to demand, prosecute, secure, collect, and receive from the Government," etc., the claim: and was to be allowed, on the claim, nine per cent. on the amount finally awarded and paid.
The case comes, then, directly within the decision in Trist v. Child (21 Wall., 441), where the Supreme Court held that-"a mere personal agreement by one setting up a claim on the Government with another person, to pay such person a percentage of whatever sum Congress, through the instrumentality of such person, may appropriate in payment of the claim, does not constitute any lien on the fund to be appropriated; there being no order on the Government to pay the percentage out of the fund so appropriated, nor any assignment to the party of such percentage" (head note); and refused to enjoin, on account of such agreement, the claimant from collecting and receiving the whole amount of his claim from Treasury Department.
And see Spofford v. Kirk (97 U. S., 484).
2. Mr. Manning can have no lien upon the judgment and draft, as the attorney procuring it, because the record shows he never, in fact, was such attorney. By common law, any attorney's lien upon a judgment is confined to compensation for services rendered by the attorney in procuring that particular judgment. His right to a lien is based, solely, upon the theory, that his services and skill procured such judgment (Ex-parte Yelden, 4 Ch. Div., 129; Coughlan v. R. R. Co., 71 N. J., 443; Story, Agency, 9th ed., § 384, note).
Clearly, if he did not, in fact, act as attorney in procuring such judg ment, whether entitled or not, under agreement to act, he has no more right of lien upon it, when procured by other attorneys, than a mechanic would have upon a house built by others for breach of agreement to employ him to build it.
3. But whatever may be an attorney's right of lien upon a judgment, by common law, no attorney's lien, legal or equitable, upon claims due from the United States, is recognized by the Government, at least when the right to such lien is disputed by claimant.
This was settled by Att.-Gen. Bates, in Bristol's case (11 Op. Att.Gen., 7), where, after a claim had been prosecuted to judgment, before
a commission, by one attorney, and a power of attorney,-the claimant gave another power to other attorneys to collect the award. The Att.Gen., in holding the latter entitled to the draft, said:
"The right of Bristol to receive his money by the hands of his chosen attorneys, seems to me a plain legal right. And I think it would be prudent in the Department to follow the law, and leave the parties to settle their conflicting equities, if any they have, before the judicial tribunals."
Followed by Att. Gen. Stanbery, in Brooks' case (12 Op. Att.-Gen., 216), holding, that even:
"An Attorney of record of the claimant, in a case prosecuted to judg ment against the United States in the Court of Claims, has no lien on the judgment, or on the money payable under it, for his fees as such attorney; nor bas he any equitable interest in the judgment, or the money payable upon it, which the Government is bound to protect, in payment of the judgment."
"Where there is a conflict of claims between an executor and his as signees for an award of moneys by the Third Auditor to the decedent, the treasury officers should pay the same to the executor, who is the legal representative," (Att. Gen. Butler, 1835--3 Op. Att.-Gen., 29). And see Draft case (1 Lawrence, Compt. Dec., 2d ed., 11).
IV. Any question of Mr. Manning's right of lien upon, or interest in, this judgment and draft, must be regarded as res adjudicata.
The claim was prosecuted before the Court of Commissioners of Alabama Claims, under the Act of 1882, re-establishing the former Court created under Act of 1874, "with the obligations, duties, and powers imposed and conferred by said chapter (Act of 1874), except as changed or modified by this act" (Act of June 5, 1882).
The former Act (thus incorporated into the latter Act) provides:"SECTION 18. That in case any judgment is rendered by said Court for indemnity for any loss or claim herein before mentioned against the United States at the time of the giving of the judgment, the Court shall, upon motion of the attorney or counsel for the claimant, allow out of the amount thereby awarded such reasonable counsel and attorney fees to the counsel and attorney employed by the claimant or claimants respectively, as the Court shall determine is just and reasonable, as compensation for the services rendered the claimant in prosecuting such claims, which allowance shall be entered as part of the judgment in such case, and shall be made specifically payable as a part of said judgment for indemnification to the attorney or counsel, or both, to whom the same shall be adjudged; and a warrant shall issue from the Treasury in favor of the person to whom such allowance shall be made respectively, which shall be in full compensation to the counsel or attorney for prosecuting such claim; and all other liens upon, or assignments, sales, transfers, either absolute or conditional, for services rendered, or to be rendered, about any claim, or part, or parcel thereof, provided for in this bill heretofore or hereafter made or done before such judgment is awarded and the warrant issued therefor, shall be absolutely null and void and of none effect."
Not only, then, did that Court have the general jurisdiction of every Court to decide who were the proper attorneys entitled to prosecute a case before it, but this provision of the Act gave it full jurisdiction to decide the amount of attorney fees, and to provide their payment by separate judgment. Mr. Manning could have invoked this jurisdiction, and not having done so, he cannot now assert a lien upon a judgment certified by the Court as payable to the administratrix alone.
This was decided by the Supreme Court, in construing this section of the Act, in Bachman v. Lawson (109 U. S., 659).
The extent of the court's jurisdiction, in settling and securing attorney's fees, was defined by the court.
"Counsel and complainants had agreed upon a sum to be paid as fees. The former moved the court to enter judgment in his favor for that stipulated amount, producing the written authority of the complainant therefor. The court denied the motion, saying that the fact, that an attorney may be subject to delay in receiving his fees, cannot be considered by the court. The object of this provision, the court was understood to remark, is to authorise an examination into the circumstances of his employment, when a counsel brings to the notice of the court the fact that a dispute exists between himself and his client. To prevent injustice, the court, upon such a state of affairs, may view the character and extent of the service rendered, and estimate, upon knowledge of the entire case, what would be a fair and reasonable compensation (Davis, Report of Opinions, Alabama Claims Ct., p. 25; Hackett, Geneva Award, pp. 122, 123).
When, therefore, the court certified this judgment, with the names of the attorneys of record, the certificate was of a judicial finding, which this Department cannot review, that such an amount was payable, irrespective of any claim of attorneys to fees, to the administratrix of the estate, and that the persons named were the attorneys of record. The question of who were the attorneys, was decided and certified just as much as the amount to be paid (McAllister's case, 2 Lawrence, Compt. Dec., 2d ed., 167).
V. It follows, then, that the duty of the Department is purely ministerial. The claim having been judicially adjudicated, and an appropriation made for its payment, the right of the administratrix to immediate payment, by receipt of the draft issued, through her certified attorneys, has become vested. The officials of the Department have no judicial power to go behind the certificate of the court, and must, therefore, in performance of their ministerial duty, give it its intended effect. That they can be compelled to do so by writ of mandamus, see United States v. Schurz (102 U. S., 378), Kendall v. United States (12 Pet., 524), Reeside v. Walker (11 How., 287).
VI. If the case is one in which the Department can exercise its discretion, we submit there is no reason why it should make any "special order" under which delivery of the draft will be withheld from the attorneys of record.
First. The Circular Regulations of the Treasury Department, October 10, 1876, provide:
1. "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.
2. 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 this Department, and be entitled to receive the drafts in such cases.
3. 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.