master and the party wrongly paid, and if the amount can be and is recovered from the party wrongly paid, the quartermaster will then be relieved from the charge.

The argument in support of this position ignores the fact that claims paid by a disbursing officer must be passed upon by the accounting officers; that the action of the disbursing officer is not final and does not partake of the nature of a decision, and that it is merely a payment made at the risk of the disbursing officer, who pays with a knowledge that his act must be approved or disapproved by the accounting officers. Stress is laid on the words of section 3477, Revised Statutes, “after the issuing of a warrant," and on the injunction of the statute that the power of attorney ""must recite the warrant," as if such specific mention of the warrant affords ground for concluding that the statute is not applicable to any case where a subsequent formal warrant on the Treasury proper is not required.

But issuing the warrant is not the only prerequisite. The statute is equally peremptory in requiring that the power must be executed "after the allowance of the claim"; and it seems reasonable to conclude from the whole act that the allowance of the claim and the ascertainment of the amount due is the essential demand, and that the recital of the warrant is required, by way of proof that the claim has been allowed by the accounting officers.

Besides this, the statute makes a valid power impossible in a case when no warrant is to be drawn. The requirement of the statute, that assignments and powers of attorney shall be void unless executed "after the allowance of such claim," is a strong indication that disbursing officers are not to pay upon powers of attorney. The Treasury needs protection against frauds as much when the claim is presented to a disbursing officer as when it is presented to the accounting officers.

Many arguments are on file in this office attempting to prove that the statute does not include a claim which is certain in amount, but I am not aware that the position was ever before taken that a power of attorney may be good when the claim is presented to a disbursing officer which would be void if the claim was being audited by the accounting officers.

There is a disposition to treat rulings recently made on this point as a new departure from settled practice, and there is a tendency to treat the question in cases where the attorney claims no interest adverse to his client as one of minor importance. But the ruling is not new, and cases in which the attorney makes no claim as an assignee cannot be distinguished by an examination of the instrument containing the power from those cases in which the attorney claims in his own right a part or the whole of the balance; nor does the statute make the sufficiency of the power of attorney as an authority for receiving money depend upon that question. The papers filed in cases in which the attorney claims to have acquired an interest may be precisely similar

to the papers presented by a disinterested attorney, and in one of the cases of the former class the attorney may rely on an implied agreement for a reasonable percentage as his fee; in another, on an express agreement in writing (not filed or presented) for such reasonable fee; in a third, on a written agreement for a specified percentage as his fee; and in a fourth case a written instrument not presented may be relied on and intended as a transfer of the whole claim to the attorney for value. (Trist . Child, 21 Wall., 441.)

The case presented by a disinterested attorney is no less within the restriction of the statute than those above referred to, and if payment can be made on the naked power in such a case, it would seem that the whole object of the statute can be thwarted by suppressing so much of the writings as relates to an assignment.

In a case where the attorney claims to be owner of the debt or of a percentage thereon, adverse to his client, I do not think any one at all conversant with the subject would attempt to argue in favor of his right to receive the money by virtue of his alleged power of attorney; yet a naked power is as clearly within the words of the statute as one that attempts to convey an interest. I think also that the danger of inconvenience resulting from an adherence to the construction given to the statute by the Supreme Court is not as great as seems to be apprehended. The sufficiency of such power of attorney was questioned (in view of the opinion of the court in United States vs. Gillis) by the Second Auditor, in a letter addressed by him to this office, July 11, 1878, and as early as November, 1878, the rule that such powers were not sufficient authority for receiving money due for supplies under contract or on other accounts was enforced by the Second Auditor with the approval of this office; and after the rule had been enforced a few weeks all indications of serious inconvenience disappeared.

The following notes of rulings of this office, made in relation to accounts settled by the Third Auditor, will also show that the question is not new:

After the decision of the Supreme Court in United States vs. Gillis, and before being advised of the ruling in Spofford vs. Kirk, this office, having under consideration a power of attorney executed by Chauncey D. Spaids, contractor for dredging in Occoquan River, Virginia, appointing E. C. Ingersoll (one of his bondsmen) his attorney, to receive such funds as may become due for work done, held that, in view of the uncertain condition of the adjudications and rulings on the question whether a power of attorney to collect an unaudited debt against the United States is valid, the Comptroller could not be justified in recommending that payment be made through the agent when it might be made directly to the principal;" that (in view of the indications contained in the correspondence submitted that the power was intended to convey an interest) "the restrictions of section 3737 of the Revised Statutes are such as to prevent the attorney from acquiring any rights

by virtue of the power adverse to those of the original contractor." (Vol. 40, pp. 613, 615.)

November 22, 1878.-In regard to a power of attorney from the sureties of Brainard & Rice, contractors for dredging in Hampton River, Virginia, and in the harbors of Washington and Georgetown, said contractors having failed to perform the work under their contract, it was held "that a contract cannot be annulled as to the principal and remain in force as an executory contract as to the sureties, and that the power submitted does not warrant payment to the attorney." (Vol. 40, pp. 641–643.) July 15, 1879.-In the matter of a proposed arrangement between Hubbard & King, creditors, and Larkin & Patrick, contractors, it was held that, since the decision in the cases of United States vs. Gillis and Spofford vs. Kirk, the accounting officers have not felt authorized to allow payments to be made to an agent where they might be made direct to the principal, although the practice had formerly been otherwise in certain cases." (Vol. 41, p. 567-569.)

November 11, 1880.-Power of attorney from W. B. Hugus, contractor, to deliver fresh beef, hay, and wood at White River, Colorado, to Joseph B. Adams, "to take charge of, manage, fulfil, carry out, do, and perform and complete all contracts, agreements, and undertakings I have made or entered into with the United States." It was held that the proposed transaction was intended as a sale and transfer of the contract, and that as such it is expressly prohibited by law, and would, if completed, annul the existing contract; that the United States, by assenting to it, would release the sureties on the contractor's bond; that the United States officers may not recognize Adams as the contractor, and that said officers must look to Hugus, settle with Hugus, and pay to Hugus. (Vol. 43, pp. 328-330.)

March 7, 1881.-Power of attorney from Pardessus & Anthony, contractors, to F. B. Colton, "to collect all money that may hereafter become due to them under their contract for dredging in Norfolk Harbor." It was held that the purpose of the power appears to be to transfer to Colton an interest in the contract; that any attempt to make such transfer is in conflict with section 3737, Revised Statutes; that all payments should be made as money due to the original contractor. (Vol 43, pp. 615, 616.)

May 5, 1881.-Power of attorney from John J. Shipman, contractor, to Jonathan Magarity, between whom a controversy has arisen, each claiming the moneys due under the contract in his own right. Held that the power of attorney in question cannot operate as an assignment, or give to Magarity any interest in the contract or in the pay due or to become due thereunder; that the contractor could revoke the power at any time, and that he is the only party to whom the Government may make payments; that so long as the contractor fulfils the contract he is authorized to receive whatever money may become due under it. (Vol. 44, p. 67.)

The act of February 26, 1853, section 3477, Revised Statutes, has been considered by the Supreme Court of the United States in the following

cases:

In the United States vs. Gillis (5 Otto, 407) the plaintiff, claiming as assignee of Ryan, sued in the Court of Claims for moneys on deposit in the United States Treasury, as proceeds of cotton captured by the military forces of the United States, Ryan having assented to the attempted assignment and to the commencement of the action.

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It was held that the act of February 26, 1853, "excepted from its sweeping provisions certain claims which were liquidated [that is, audited] and for which warrants' were drawn"; that the act Covers all claims against the United States in every tribunal in which they may be asserted"; that the assignment was void.

In Erwin vs. United States (7 Otto, 392) the claim was also for the proceeds of captured cotton. It was held that the claim passed to the assignee in bankruptcy.

In Spofford vs. Kirk (7 Otto, 484) which was an appeal from a judg ment of the supreme court of the District of Columbia, the plaintiff sued, claiming to be assignee of a part of the proceeds of a claim for supplies furnished the Army, and for damages sustained by reason of military occupation of his, the assignor's property.

The court said of this statute, the act "declares that all transfers and assignments thereafter made of any claim upon the United States" shall be absolutely null and void. "It would seem impossible to uselanguage more comprehensive than this. It embraces alike legal and equitable assignments. It includes powers of attorney, orders or other authority for receiving payment of any such claims, or any part or share thereof. It strikes at every derivative interest in whatever form acquired, and incapacitates every claimant upon the Government from creating an interest in the claim in any other than himself"; and referring to the case of the United States vs. Gillis, the court said: “We then concluded that it embraced every claim against the United States, however arising, of whatever nature, and wherever and whenever presented." And, apparently, to emphasize its disapproval of the idea that there might be unaudited accounts or debts against the United States that were not claims, because they were liquidated, or because they were definite and certain in amount, the court used the word "debt" interchangeably with the word "claim." In addition to saying "every claim, however arising," it said, "it is hard to see how the transfer of a debt can be of no force as between the transferrer and the debtor, and yet effective as between the creditor and his assignee."* In McKnight vs. United States (8 Otto, 179), the sum of $30,675.68,

*It must be apparent that this emphatic language was intended to change the construction which had been put upon the statute by Comptroller Whittlesey, in his cirenlar of May 2, 1853 (1 Lawrence, Compt. Dec., 2d ed., 294, paragraph 12.)

due from the United States to Simeon Hart for flour delivered by him at an agreed price in pursuance of a contract, which indebtedness he had assigned, or attempted to assign, to McKnight & Richardson, was afterwards (January 6, 1873) audited by the accounting officers in favor of McKnight & Richardson as assignees of said Hart, but Hart being charged as indebted to the United States on another account, the Secretary of the Treasury ordered that $9,000 of the amount be deposited in the Treasury, virtually to await the settlement of Hart's account.

McKnight, claiming to have succeeded to the rights of McKnight & Richardson, brought his action in the Court of Claims for the $9,000. The United States claimed, by way of counter-claim in the action, the $21,675.68 that had been paid to McKnight & Richardson. The court denied the counter-claim, not because of the sufficiency of the assignment to McKnight & Richardson, but because the transaction was completed and no injustice appeared to have been done by the payment of the $21,675.68.

The court said: "It is true the assignment was contrary to law, and therefore a nullity; but there was nothing contrary to good morals or conscience in the payment or receipt of money." * "The as

signment, as we have already said, was wholly void (Spofford vs. Kirk, 97 U. S., 484); it conferred no right that the United States was bound to regard. The payment of a part was not a waiver of this objection as to the residue." The court denied the plaintiff's claim for the $9,000 on the ground that the assignment was void under the act of 1853.

In Goodman v. Niblack (12 Otto, 556), Albert G. Sloo was a contractor for transportation of the United States mails, and he had, prior to the passage of the act of 1853, entered into an agreement with Robert and others by which they contracted to construct ships and do the transportation in accordance with the contract, and Sloo was to receive one-half of the net profits of the venture, and they the other half. Sloo, having subsequently become insolvent, in 1860 executed a general assignment of his property to Cheever & Wiles, and the question was whether this last assignment was void under the statute of 1853. The court said: "His assignment to Cheever & Wiles in 1860 conveyed only his interest in the profits of the contract which the parties in the first assignment were performing or had performed for the Government." The first assignment was made before the passage of the act of 1853; it was recognized as valid by the private act of Congress of date July 14, 1870, so that Roberts and others had become the parties having the contract with the United States. The court substantially held that the assignment to Cheever & Wiles was an assignment of a claim against Roberts and others, and therefore not of a claim against the United States; that before the passage of the act of 1853 Sloo had transferred all his right to execute the contract or otherwise deal directly with the