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ERRONEOUS PAYMENT, (continued.)

no new requisition can be issued to cover the claim. A requisition having been already issued, and upon it a warrant, which is in legal contemplation yet outstanding, the proper course to be pursued to adjust the matter, is to issue a duplicate warrant, reciting the facts relating to the disposition of the first; or to withdraw the first, and issue another, to be treated as if presented the first time for pay

ment...

The person entitled to payment may be satisfied from the appropriation out of which
his warrant was originally payable, the same as if the mistake had not been made.
He is not bound to await a new appropriation by Congress..
The Treasurer having paid the warrant wrongfully, through mistake, is chargeable
with such mistake...

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In date of appointment..

The payment of a liquidated demand against the government to a person not authorized to receive it, does not relieve the government from responsibility to make payment to the proper claimant.....

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There is no distinction in principle between such a case and that of an individual debtor, who instead of paying his creditor, has made payment to a third person, to whom the money was not owing...

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If accounting officers err, designedly or by mistake, in making payments, the loss must fall on the United States..

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ERROR. (See Land patents.)

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EWAL, THOMAS...

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ERRORS Correction of.....

ESCAPE FROM BLOCKADING SQUADRON.

ESPY, JAMES...

ESTIMATES Sanctioned by appropriations..

ETHERIDGE, JAMES

EUGENIE. French Ship.

EVANS, HON. GEO...

EVERITT, A. H...

EVIDENCE de bene esse. See Capture.

EWING, W. G. & G. W.

Where a claim against the Pottawatomies had been adjudicated and allowed by a former Secretary of the Interior, and certificates therefor issued by the Commissioner for Indian Affairs to the original claimants, payable from the annuities of that tribe in three annual instalments, which were subsequently transferred to Suydam, Sage & Co., and by them to the Merchants' Bank in New York, whose attorney claims payment; but before the same was made, a rehearing was demanded on behalf of the Indians, on the allegation that they were not originally liable to the Ewings for the amount adjudicated to them by the said Secretary; and a question having cotemporaneously arisen between the Ewings and the said bank, concerning the terms and purposes of their transfer of the said certificates-DECIDED, that the present Secretary of the Interior ought to regard the decision of his predecessor, as to the amount due from the Indians, as conclusive; and that, if any wrong has been done, the remedy should be sought of the judiciary; and that payments of the certificates should be withheld until the conflicting claims of the Ewings and Merchants' Bank shall also be settled by the judiciary..

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It is doubtful whether Indian annuities, granted by the government, ought to be regarded as legally assignable, unless made so by law..

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A payment to a person acting under a power of attorney from one of several execu tors is valid, co-executors being regarded in law as an individual person, and the act of one as the act of all....

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Although it has been the custom of the Bank of the United States and the treasury officers to respect powers of attorneys derived from foreign executors, the Supreme Court has decided that suits cannot be maintained in the District of Columbia upon letters testamentary granted in a foreign country. (3 Cranch, 319.)..... Letters testamentary give to executors no authority to sue for the personal estate of

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EXECUTORS AND ADMINISTRATORS, (continued.)

the testator out of the jurisdiction of the power by which the letters were granted. (9 Cranch, 151)....

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A legatee under a will made in France cannot maintain a suit in equity in the courts of the United States, without probate first had of the will in the proper court of this country. (12 Wheaton, 169.)..

Our courts hold that foreign laws are matters of fact, and should be proved like other facts.

A foreign administrator cannot maintain a suit on letters granted in a foreign country. Whatever may have been the practice of the government concerning foreign letters, it is not safe to act upon a power of attorney, to transfer any of the funded debt, executed by a foreign administrator. (See preceding opinion.).

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Where there is a conflict of claims between an executor and his assignees 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... Where assignments in due form are presented, and no objection is made to the right of the assignee, it may be paid to him.... EXPENSES of repairs and supplies for coast survey must fall upon appropriations for survey of the coast..

Vessels detailed from navy or revenue service for duty on coast survey must be repaired from funds for the branch of service to which they belong. EXPENSES of civil officers.....

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The limitation of expenses in the collection of revenue from customs imposed by the 4th section of the act of 3d March, 1849, is not applicable to the first half of the fiscal year commencing June 30, 1849.

The 3d and 4th sections of the act are to be read together; and the term "thereafter," in the proviso to the 4th section, is to be construed to apply to the period for which estimates are to be made under the 3d section, and not to the beginning of the coming fiscal year.... EXPERIMENT, U. S. Schooner. EXPLORING EXPEDITION.

The arrangements for this expedition being at the discretion of the President, he may appoint and employ a medical assistant thereto without the formality of an examination and approval by the board of surgeons..

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The secretary of the commander of the surveying and exploring expedition has no legal right to compensation for services rendered anterior to the appointment of the commander and the receipt of formal notice of his appointment as secretary; yet if he actually rendered services in respect to that expedition before, and in the judgment of the President has an equitable claim, he may be paid out of the appropriation of 1836, for the expedition, without sending the claim to Congress.... 1203 Lieutenant Wilkes, who commanded the exploring expedition, does not come within the provisions of the appropriation act of the 3d of March, 1843, and is not entitled to such a rate of extra pay as will make his annual compensation equal to that of the Superintendent of the Coast Survey...

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That act only authorized the accounting officers to allow and credit with extra pay those officers who were employed in scientific duties in the late surveying and exploring expedition to the Pacific ocean and South seas..

The only extra compensation justly claimable by him is such as was allowed to of-
ficers of the navy, of equal grade with those employed in the coast survey..
EXPLORING EXPEDITION, extra pay to officers of.....
EXTENSION OF PATENTS FOR INVENTIONS.....
EXTRA COMPENSATION.

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The Secretary of the Navy has the contingent fund of the department entirely at his disposal, from which he may draw for the purpose of compensating any services rendered in any of the relations of his department which are of a contingent character...

Governor Cass having been employed by the government to perform services which did not belong to his duty as governor of the Michigan Territory, he has a fair claim to compensation on the principles of a quantum meruit... The design of the proviso limiting the compensation of officers of the army, contained in the act passed March 3, 1835, was to prohibit the payment of any per-centage, additional pay, extra allowance, or extra compensation to them, not only on account of the disbursing of public moneys appropriated during the last session of Congress for any of the purposes specially enumerated, but also to prohibit any such allowance for any other service or duty whatsoever, unless authorized by

law......

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EXTRA COMPENSATION, (continued.)

Officers of the army acting as Indian agents, who shall be employed in the removal of Indians, may, notwithstanding said act, be allowed their actual travelling expenses.....

Certain acts of Congress, when construed together, authorize the continuance of allowances for quarters, fuel, and transportation, agreeably to estimates and the for

mer usage....

The practice of commuting for quarters and fuel is only a particular mode of ascer-
taining the amount of the proper allowances for these objects, adopted from a re-
gard to convenience and economy; and, as it is still authorized by law, there is no
objection to the continuance of this method of settling it......
According to the regulations in force at the time, the duties performed by Captain
Delafield were so far extra as to entitle him to the special compensation provided
for by those regulations, not exceeding two and a half per cent. on all the moneys
disbursed by him..

Lieutenant Colonel Talcott is entitled to receive a reasonable compensation for the
services performed and the expenses incurred by him for superintending the Spring-
field armory, whilst he was in command of the Watervliet arsenal; but not as
superintendent of said armory whilst there was a regular superintendent in

office...

The clerk of the navy and privateer pension and navy hospital funds is entitled, over and above his salary, to a fair compensation for services performed by him in respect to the United States coast survey, as those services were no part of his official duty....

Clerks whose ordinary duties are prescribed by law, or by the head of the bureau in which they are employed under the authority of law, who perform services additional to those which are in their line of ordinary duty, are equitably entitled to a just compensation therefor...

Services thus rendered the government must be regarded as wholly extra official..
Clerks in the Fourth Auditor's office are entitled to a fair compensation for services
performed by them in relation to the navy pension and navy hospital funds, pro-
vided those services are not within the range of the powers and duties assigned by
law to the office of the Fourth Auditor...

The same rule for ascertaining whether services were extra-official, as was laid down
in the opinion given on the 6th of April, 1838, should be applied...
The two clerks in the bureau of Indian Affairs are not entitled to the additional com-
pensation asked for, under the third section of the act of 3d March, 1837..
The claim of General Scott for a compensation of eight dollars per day over and
above his regular pay as major general, for superintending the removal of the
Cherokees under the direction of the Secretary of War, cannot be allowed without
violating the proviso to the act of 3d March, 1835..

The claim of General Scott for compensation, at the rate of eight dollars per day over
and above his regular salary, for arranging and superintending the removal of the
Cherokees, even though he were a special commissioner to effect that object, can-
not properly be allowed...

Clerks and others holding regular appointments to places created, and receiving specific salaries affixed thereto by law, are not entitled to additional allowances for services rendered the government as the agent for surveying and selling Indian lands, the same being prohibited by acts of Congress....

Extra compensation to persons entitled to salaries may be allowed only where money shall have been appropriated for the particular services, for the rendition of which it is claimed as a compensation....

...

In a case of a general appropriation of a sum of money for the accomplishment of a
particular object, no part of it can be paid to a person receiving an annual salary,
unless the services rendered are directed to be paid for by the act....
Payment for such services cannot be made out of the contingent tund..........
The chief messenger in the Treasury Department is not entitled to compensation over
and above his salary for carrying the mails of the several offices occupying the
southeast executive building, to and from the post office; but, if he be required to
furnish a horse for that duty, a reasonable compensation for that should be al-
lowed....

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Nor are watchmen entitled to extra compensation for labor performed in the offices during the day......

All such claims for compensation come within the prohibitions of the 3d section of the act of Congress of the 3d March, 1839; and the views of the Attorney General were given upon the act in his opinion of 4th April last....

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Navy agents employed to make purchases, or to perform any services for a depart

EXTRA COMPENSATION, (continued.)

ment other than the Navy Department, are not entitled to extra compensation unless compensation for the extra services is expressly authorized by law.. Extra compensation to the judge of the superior court at St. Augustine, for examining and adjudging certain cases of claims, cannot be allowed, as there is no appropriation for the services, and no provision for their payment, in the act requiring them......

...

T'he district attorney for the District of Columbia is entitled to a reasonable compensation, over and above his salary and stated fees, for attending, on the part of the United States, during the taking of certain depositions in said District in a case depending in the circuit court of Missouri......

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The district attorney of Vermont is entitled to an allowance for expenses incurred in numerous journeys, undertaken, with the approbation of the Solicitor of the Treasury, for the purpose of securing certain payments due to the United States and a further allowar.ce for compensation in superintending the sale of certain real estate in Vermont...

Clerks in the office of the Secretary of War are not entitled to extra compensation for attending to the business connected with the reservations under the Creek treaty of March 24, 1832.....

The contingent fund cannot be properly applied in payment for extra services......
The executive department has no authority to give extra pay to the officers of the
United States exploring expedition...

The acts of 1835 and 1839 positively preclude extra payment to them unless a special appropriation therefor shall be made by Congress....

Mr. Butler's opinion of the 5th October, 1837, adverted to, and in some respects dissented from...

On review of the subject of the preceding opinion, the opinion itself is reaffirmed There being no express appropriation to meet the claims of the officers detailed for the exploring expedition for extra pay, and the same not being chargeable to the general fund for the support of the navy, the Executive cannot legally order such payment to be made from the treasury.

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The act of 3d March, 1839, which is a perpetual law applying to all branches of the public service, expressly forbids any person whose salary, pay, or emoluments is fixed by law, to receive any extra allowance or compensation in any form whatever for the performance of any service, unless the same shall have been authorized by law...

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Whatever may have been the discretion vested in the Executive before, it was taken
away by that act.-(Case of Fillebrowne, 7 Peters.)......
The claimants, however, are referred to Congress....

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The opinion of Mr. Grundy, that wherever the President is authorized by law to have any service performed, it is necessarily intended that he has the right to order payment therefor out of the treasury, dissented from....

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The Executive has no authority for allowing extra compensation to the officers at
West Point, the same not being authorized by any law....
The Attorney General refers to his opinion concerning the right to extra pay of the
officers of the United States exploring expedition..

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The representatives of the late district attorney for the District of Columbia are not entitled to extra compensation for services rendered the United States by him in a proceeding by mandamus against the Postmaster General for refusing to allow credits settled and adjusted by the Solicitor of the Treasury, under the act of Congress of 2d July, 1836; it being his duty to attend to the proceeding in behalf of the United States

Nor are they entitled, as a matter of right, to any compensation not stipulated to be paid him for assisting the Attorney General in arguing the cause before the Supreme Court of the United States....

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Having in his lifetime been paid the amount offered by the government for his services, and the administration under which the service was rendered having given place to another, it is not deemed discreet for the Executive to allow further compensation to the representatives of the deceased..

Even if it were allowed, it could not be paid out of the moneys in the treasury appropriated to other purposes.....

A commissioner for the exploration and survey of the northeastern boundary cannot be allowed extra compensation by the accounting officers unless there shall be legislative action authorizing it...

The provision that officers or persons in public employ, whose salaries are fixed by law, cannot receive any additional allowance except for travelling for the performance of duties at a distance from their stations or domicils, applies to officers of the navy as well as to other public officers...

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EXTRA COMPENSATION, (continued.)

The Attorney General is of opinion that there cannot be a case presented in which an officer, whose salary is fixed by law, can be entitled to an extra compensation for the discharge of a public service..

Extra compensation cannot be allowed an officer whose salary is fixed by law for the discharge of a public service; but travelling expenses may be...

The Secretary of War, in the ordinary execution of his public duties, cannot employ and compensate collectors, &c., in the revenue service, for disbursing moneys appropriated for topographical purposes..

A clerk in the Pension Office ordered to perform the duties of secretary to commissioners appointed to treat with a delegation of Indians is not entitled to extra compensation therefor, but must be limited to the compensation provided by law for his services as a clerk in the Pension Office....

The exceptions to the general rule of disallowing extra compensation are only ap-
plicable as in the case where extra compensation is allowed by law, or where from
death, absence from the seat of government, or sickness of some officer, the Pres-
ident orders another officer to perform the duties....

Major Ripley is entitled to payment of his account for extra services in superintend-
ing the Springfield armory, as such superintendence was in addition to his appro-
priate duties, and as an appropriation was made by Congress to satisfy it, which
no other person could receive. (See opinions of Mr. Grundy, dated 4th April,
1839, and of Mr. Nelson, dated 22d September, 1843.). ...
Major Craig is entitled to extra compensation for his services as superintendent of the
armory at Harper's Ferry, Congress having made an appropriation therefor, which
no other person is entitled to receive....

The compensation claimed was assigned by Congress to the incumbent, and payment
thereof is therefore authorized by law....
(See opinion of Attorney General Mason, of 10th August, 1846, respecting the claim
of Major Ripley for compensation for superintending the Springfield armory.)
The accounts of disbursing officers for extra compensation paid under the order of
Major General Scott, of May 3, 1847, to certain volunteers in the war with Mexi-
co, should be allowed, provided the disbursements shall be adjudged to have been
necessary and proper, and there is a sufficient amount of the contribution fund to
meet them.....

EXTRADITION.

If a Spanish subject who has violated the territorial law of Florida shall be within the United States at the time of demand for him as a subject and fugitive from justice, he ought to be given up for trial and punishment; yet there is no law directing the mode of proceeding..

A requisition from the British minister is not authorized by the 27th rticle of the treaty of 1794, unless the persons demanded are charged with murder or forgery committed within the jurisdiction of Great Britain..

The authority of the General Government to take, forcibly detain in custody, and bring to this country from Europe, a person charged with barratry on private property, is doubtful. The offender if he were here, would be amenable to our courts. The President of the United States has no power to order the delivery of diamonds and precious stones of the Princess of Orange, referred to in the note of Chevalier Huygens; nor will he be justified in directing the surrender of the person upon whom a part of the stolen articles may have been found, as there is no stipulation between the two governments for the mutual delivery of fugitives from justice.

The Executive is not authorized to deliver up to the King of Portugal two seamen confined in Boston, who are charged by the charge d'affaires of his Majesty with piracy committed on the brig Triumph....

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There is no law of Congress which authorizes the President to deliver up any one found in the United States who is charged with having committed a crime against a foreign nation; and we have no treaty stipulations with Portugal for the delivery of offenders..

No State can, without the consent of Congress, enter into any agreement or compact, express or implied, to deliver up fugitives from justice from a foreign State who may be found within its limits..

According to the practice of the executive department, the President is not considered as authorized, in the absence of any express provision by treaty, to order the delivering up of fugitives from justice....

A fugitive from justice of Scotland, charged with the commission of the crime of murder in that country, and apprehended in the United States, and examined before a commissioner, and by him certified to be probably guilty on the evidence adduced,

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