Rev. Stat., 395, (Rev. Stat., 277,

Department, for the purpose of paying for postal services. This mode is authorized as an incident to the general powers given to the Postmaster-General (The Floyd Acceptances, 7 Wall., 680; 408, 3617, 3644), and by specific provision of statutes. 395, 3639, 3642, 3643, 3644, 3674, 3846, 4054 and 4055.) No part of the postal revenues proper has ever been carried into the "appropriation account" of "outstanding liabilities," mentioned in section 306 of the Revised Statutes.

It seems to be supposed that "the original debt [to the Railroad Co.] was merged in these negotiable obligations [the collection drafts] and a totally new right of action accrued to the claimant," in sup port of which is cited McKnight's case. (13 Ct. Cl., 292; s. c. 98 U. S., 179; Buffalo Bayou Railroad case, 16 Ct. Cl., 238; Merrick v. Bowry, 4 Ohio St. R., 60; Bank v. Slemmons, 34 Ohio St. R., 146.) If this be so, it does not aid the claimant. Congress has made no appropriation to pay this alleged "new right of action," and sections 306 to 308, inclusive, of the Revised Statutes, have never been construed as furnishing any relief in such case. If a new account could be stated by the proper Auditor, and balance certified thereon, there is no appropriation available for its payment. If the act of June 14, 1878 (20 Stat., 130), gives a remedy, that remedy has already been pursued, but it was met by a failure of Congress to appropriate money for payment.

But it is not perceived that there has been any merger. An original claim may cease to exist in several modes, as by (1) merger, (2) extinguishment, (3) novation or substitution, (4) accord and satisfaction (Leavitt v. Morrow, 6 Ohio St. R., 71), (5) payment, and in other modes. There has been no merger in any technical legal sense. A claim is merged when there is substituted for the evidence of it other evidence of a higher nature (Bank of Columbus v. Patterson's Adm'rs, 7 Cranch, 303; Eldred . Bank, 17 Wall., 545); it is extinguished when the party entitled to pay ment becomes also the debtor (Compton v. Oxenden, 2 Ves., 264, Bouvier, Law Dict., "Merger," 4); it is novated when the debtor with the assent of the creditor is released from liability by creating a liability therefor to another party (1 Parsons, Cont., 6th ed., 217); it ceases by accord and

*The following analysis may be added of the various modes by which the liabil ity of the debtor on any particular form of debt may cease to exist:

(1) By a provision of a Bankrupt or Insolvent Act.

(2) By merger in a judgment.

(3) By gift or bequest.

(4) By debtor's appointment at common law, to be the executor of his creditor.

(5) By any other matter which constitutes a discharge by the local law.

2. By agreement of the parties.

(1) By accord and satisfaction.

(2) By release.

(3) By covenant not to sue.

(4) By novation, or substitution.

(5) By agreement of the creditor to take another or higher security in lieu of the debt. (See 2 Dan., Neg. Inst., 1221-1293.)

satisfaction, which is a new agreement between the parties in satisfaction of a former one, or the execution of the latter agreement (2 Id., 681); it is paid, by (a) the delivery of money or other property accepted in satis. faction thereof, or (b) when the debtor executes to his creditor a negotiable security with a mutual agreement or intention that it is to operate as satisfaction (Peter v. Beverly, 10 Pet., 567; Sheehy v. Mandeville, 6 Cranch, 253, 263, 264; 2 Pars., Cont., 6th ed., 625, 684; Stewart v. Braley, 10 Ohio St. R., 188; Riddle v. Cauley, 4 Western Law Monthly [Cleveland, Ohio], 124); and finally, remedies thereon may be lost by estoppel, when the creditor has made some representation in relation thereto which good faith will not permit him to deny, or has done some act, or has been guilty of some omission of duty to the prejudice of some party who has changed his condition by reason thereof. (Morphy v. Blanchin, 18 La. Ann., 133; Hard v. Seeley, 47 Barb., 428; 2 Pars., Cont., 681; Buffalo Bayou case, 16 Ct. Cl., 239; Bailey v. United States, Supreme Court U. S., October term 1883.) In the Buffalo Bayou case (16 Ct. Cl., 239) it was held that an action may be maintained against the United States upon a Treasury draft issued in payment of an account audited and certified at the Treasury Department, notwithstanding that the original cause of action is barred, and although such draft is not in the claimant's possession, but has been wrongfully paid to another party. It is said in this case that such drafts "constitute new contracts on the part of the Government, into which the previous claims upon which they issued are merged, and are valid and binding upon the United States in the hands of bona fide holders, by indorsement for valuable consideration, as commercial bills of exchange and promissory notes are between individuals." And it was held, that great wrong and injustice would result if "such evidences of indebtedness could be ignored at the option of the party who issued them, and public creditors be necessarily remitted to their pri mary cause of action." In strict law it would seem there is no technical merger as stated. It is clear that such drafts are proper evidence of a right of action. The question whether the original creditor may elect to sue on such evidence, or on the primary cause of action, is not now material. (2 Greenleaf, Ev., 104.)* As to the claim now under consid

'Bills of exchange and promissory notes do not differ in dignity from other parol contracts. Lord Abinger in Beckham v. Drake (9 M. & W. 92), says, "The law makes no distinction in contracts, except between contracts which are, and contracts which are not, under seal. I recollect one of the most learned judges [Lord Ellenborough] who ever sat upon this or any other bench, being very angry when a distinction was attempted to be taken between parol and written contracts, and saying, "They are all parol, unless under seal.'"

The mistake of distinguishing between written and oral contracts has caused some confusion. (1 Parsons, Cont., 6th ed., 8, and authorities cited.)

Promissory notes and bills of exchange, it is true, possess characteristics which distinguish them from other evidences of indebtedness. They are not only transferable, as are now all other choses in action, but they carry in the transfer a clear title, a full measure, and, like an instrument under seal, import a consideration. (1 Dan. Neg. Inst., 1.) But they do not alter the nature of the simple contract debt. (See Bank v. United States, 6 How., 31.)

eration, it may be said, that the evidence shows that the collection drafts already mentioned have been canceled, and the claimant is pursuing his remedy on his primary cause of action. And as to this, his sole remedy is that which is open to him by the act of June 14, 1878 (20 Stat., 130).

Fourth. No executive officer has any further duty to perform in reference to the claim now in question. It has been allowed by the proper Auditor, it has been by him transmitted to the Secretary of the Treasury under the act of June 14, 1878 (20 Stat., 130, sec. 4), and the latter officer, as said act authorized, reported the amount due the claimant to the Speaker of the House of Representatives, who laid the same before Congress, and that body failed to make an appropriation for its payment. (House Ex. Doc. No. 26, 1st. Sess. 47 Cong., p. 77; act August 5, 1882-22 Stat., 275 and 281; compare with said Doc. pages 2 and 77.) In performing the duties and exercising the powers mentioned the Auditor and Secretary respectively constituted a special tribunal, each with authority prescribed and limited by statute. Chief Justice Marshall has said it is "a sound principle, that when a special tribunal is created, with limited power, and a particular jurisdiction, whenever the power given is once executed, the jurisdiction is exhausted and at an end-that the person thus invested with power is, in the language of the law, functus officio." (Ex-parte Randolph, 2 Brock, 473; Reeside's Appeal, ante, 168; Bank v. Moss, 6 How., 38; Jackson v. Ashton, 10 Pet., 480; Schell's case, post, 573; State ex rel. Commissioners of Hamilton Co., 26 Ohio St., 369; Meade v. United States, 9 Wall., 691; s. c., 7 Ct. Cl., 161.) No statute has given any executive officer any further power over, or charged any such officer with any additional duty as to, this claim. On the 4th of June, 1857, Attorney-General Black said: "There must be an end at some time or another even of a claim against the Govern ment. Interest reipublicæ, ut sit finis litium, is a maxim as applicable to public creditors, urging their claims upon an executive Department, as to any other class of litigants." (9 Op., Att.-Gen., 34.) Congress is clothed with abundant authority to provide for the payment of all just claims against the United States, without limitation as to time, and with a power to act which can never be exhausted. There is no authorized mode of relief for the claimant except by an appeal to that en lightened body, whose sense of justice is not to be doubted. The Secretary of the Treasury will be advised accordingly. TREASURY DEPARTMENT,

First Comptroller's Office, December 2, 1883.

IN THE MATTER OF CHARGING INTEREST ON A FINAL JUDGMENT, FOR THE PAYMENT OF WHICH THE UNITED STATES IS LIABLE, AND OF OPENING SUCH JUDGMENT BY CONSENT AFTER THE TERM AT WHICH IT WAS RENDERED HAS ENDED.-SCHELL'S CASE.

October 7, 1882, C. recovered judgment for $1,734.80 in the circuit court of the United States against S., a collector of customs, for excessive fees exacted at a customhouse on entries. March 19, 1883, the Supreme Court, on error affirmed said judgment, "with interest until paid,” and directed a mandate to the court below to enter judgment accordingly. April 16, at the same term, the Solicitor-General moved, on behalf of S., to correct the judgment and mandate, so that they should not carry interest up to the time a new judgment should be rendered by the court below. May 7, the motion was overruled. Final judgment was subsequently entered in the court below in accordance with the mandate. Prior to the original decision on the writ of error, R. recovered a verdict against S., on a similar cause of action, and it was agreed that judgment thereon should await the decision on the writ of error and abide its event. After the original decision on error, judgment was entered on the verdict, April 23, 1883, with interest to that time. November 22, 1883, R. made application to the Secretary of the Treasury to allow interest on the latter judgment "until paid," or to authorize the proper district attorney to consent that the judgment be opened, and a new judgment entered including interest to date. The Secretary referred the application to the First Comptroller, who held: 1. Section 989 of the Revised Statutes requires the United States, on proper showing, to pay the principal sum of said final judgments. 2. The law presumes that the Government is always ready and willing to pay its ordinary debts, and so does not generally hold it liable for interest thereon. 3. But when the United States assumes a liability for the act of an officer, and a claimant has been obliged to bring suit against such officer, such claimant is entitled to interest until he recovers final judgment. And if a writ of error be taken, by authority of the United States, from a circuit court in which a judgment has been rendered, to the Supreme Court, and such judgment be affirmed, “with interest until paid," the claimant is entitled to be paid the amount of a final judgment rendered on the mandate in the court below, including interest to the date of the entry of the latter judgment, but not afterwards. Hence, in the case of the judgment of C., he is entitled to interest until the date of the final judgment entered in pursuance of the mandate. 4. The Government is not liable to pay interest on such final judgment. 5. The United States is not liable to pay interest on the judgment in favor of R. for several reasons: (1) It was entered in conformity to the decision of the Supreme Court, as required by the agreement to abide the event of such decision. (2) The judgment was a res adjudicata of the rights of R., both on his original cause of action, and as affected by the agreement mentioned. (3) The United States has been ready at all times to pay the judgment. (4) The judgment is a new contract, in the highest form known to the law, the validity of which cannot be called in question collaterally and by parol evidence. (5) Neither the Secretary of the Treasury nor any other officer is authorized to consent to the opening of the judgment. (6) Rights of the United States, legally fixed by the judgment of a court, cannot be surrendered or waived without express authority of law. (7) The power of a court, when exercised by the rendition of a final judgment, is exhausted, and the court is, as to the subject-matter adjudged, functus officio. (8) When the law does not give a court jurisdiction of a particular cause of action, it cannot be given by consent of parties. (9) Section 30124 of the Revised Statutes makes a permanent specific appropriation for the payment of judgments against collectors of customs for the exaction of excessive duties.

October 7, 1882, Thomas Cochran and William Barber, surviving partners of S. Cochran & Co., recovered judgment in the circuit court of the United States for the Southern District of New York, against Augustus Schell, late collector of customs, for $1,892.83, composed of $1,734.80 damages and $158.03 costs. The damages were for excessive fees exacted at the custom-house on entries. Schell prosecuted a writ of error, and on March 19, 1883, the Supreme Court affirmed the judgment of the circuit court, "with interest [from October 7, 1882] until paid, at the same rate per annum that similar judgments bear in the courts of the State of New York." (Schell v. Cochran, 107 U. S., 625; see Barber v. Schell, Id., 617.) On the 4th of April, 1883, the mandate was sent to the court below, and it may be inferred that judgment was thereafter accordingly entered therein, but the date is not shown. April 16, 1883, at the same term of the Supreme Court in which the judgment of affirmance was entered in Schell v. Cochran, the Solicitor-General, represent ing the United States, moved, on behalf of Schell, to correct the judg ment and the mandate, by striking out the direction as to interest, so that the judgment of October 7, 1882, should not carry interest up to the time a new judgment should be rendered by the court below in pursuance of the mandate. May 7, 1883, the motion was overruled.

Before this case was taken to the Supreme Court, two other verdicts against Schell in similar actions had been obtained in the circuit court. The respective plaintiffs and the district attorney thereupon agreed that these cases should "stand over without judgment being entered, until the case of [Schell v. Cochran] should be reviewed by

the Supreme Court, and [that they] were to abide the decision in that case." After the original decision of March 19, 1883, by the Supreme Court, judgments were entered in the two cases in the circuit court, April 23, 1883, Recknagel v. Schell for $1,452.79. and April 30, 1883, Hutton v. Schell for $1,579.97. November 22, 1883, A. W. Griswold, as attorney for these judgment creditors, addressed a letter to the Secre tary of the Treasury, stating in substance the foregoing facts, and say ing that, "according to the mandate in Cochran v. Schell that judgment draws interest until paid," and asking that interest be allowed on the judgments, as, by reason of the long delay in payment, it is an impor tant item. And he adds:

"Should not the cases stand or be placed on the same footing [with Schell v. Cochran]? They were to abide the decision in that case; should they not draw interest as well as the Cochran case? If the Department considers there is any doubt about its authority to allow interest, the plaintiff's request that the United States attorney be author ized to consent to the opening of these two judgments, to the end that the interest which has accrued since the judgments were docketed-for the past seven months-may be added to the amount and new judgments entered, including this interest."

November 26, 1883, this letter was by the Acting Secretary of the Treasury "referred to the First Comptroller for an expression of his