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THE ATTORNEYS GENERAL
THE UNITED STATES,
PRESIDENT AND HEADS OF DEPARTMENTS.
IN RELATION TO THEIR OFFICIAL DUTIES,
AND EXPOUNDING THE CONSTITUTION, TREATIES WITH FOREIGN GOVERNMENTS
PUBLISHED BY W. H. & O. H. MORRISON.
Entered, according to Act of Congress, in the year 1858, by
In the Clerk's Office of the District Court of the District of Columbia.
STEREOTYPED BY YEARS & DISEIBPRY,
PRINTED BY C. SHERMAN
HON. CALEB CUSHING, OF MASSACHUSETTS:
APPOINTED MARCH 5, 1853.
As a general rule, when the Government, by its authorized agent, becomes a party to negotiable paper, it has all the rights, and incurs all the responsibilities, of other parties to such instruments.
But exceptions to this rule may become established in the practice of different departments of the Government.
ATTORNEY GENERAL'S OFFICE,
July 10, 1856.
GENTLEMEN: Your communication of the 7th instant calls for my opinion on two points of law, regarding which you differ, in the case of George Whitman. (See my opinion of June 25th, 1856.)
The material facts of the case are stated by you as follows: The Postmaster General, on the 11th of August, 1838, sent to Whitman, in payment of services rendered as mail contractor, a draft for $12,000 upon W. H. Kerr, postmaster at New Orleans. Accompanying the draft was a circular in these words: "Please date and sign the annexed acknowledgment, and return it by the first mail to this office. The draft must be presented for payment before the expiration of ninety days." No other directions were given, and Mr. Whitman acknowledged the receipt of the draft, under date of August 29, 1838. On the presentation of the draft, payment was refused by the drawee, and Whitman then obtained a discount upon it at the Bank of Orleans.
No notice of non-payment of the draft was given by Whitman,
or other holder of the draft, to the Post Office Department, nor does it appear that any demand was made by the Bank of Orleans or other party, till about the 4th of September, 1839, when payment was requested by the holder and refused by the Postmaster General, under date of September 9, 1839. The Bank of Orleans subsequently called upon Whitman to take up the draft; and $2000 of Kerr's funds in the bank having been applied towards its payment, the balance was paid early in 1843, by Whitman, who has ever since owned the draft.
Mr. Kerr, the postmaster at New Orleans, charged the draft, as if paid, in his report to the Department for September, 1838, and was allowed a credit upon the amount.
Meanwhile, it subsequently appeared that Mr. Kerr was a defaulter, and as alleged, notice of the dishonor of the draft would have put the Department on its guard and prevented the loss of the money.
Upon which state of facts you present the following questions: "1. Does the law merchant, so far as it requires protest, or notice of dishonor, for non-acceptance or non-payment of drafts, or bills of exchange, in order to hold the drawer responsible, apply generally to drafts drawn by authorized agents of the Government upon other agents or depositaries?
"2. If the law merchant, in regard to notice and protest, be of general applicability to Government drafts or bills of exchange, does it apply, under the foregoing state of facts, to the case of George Whitman now before us?"
I. As to drafts drawn by an authorized agent of the United States on another agent or official holder of the funds of the Government.
It is well settled that bills drawn by one government on another government, as, for instance, by the United States on France, or by the Mexican Republic on the United States, are not commercial drafts, or subject to the rules of municipal law regarding notice, damages on protest, and the like. (The United States v. The Bank of the United States, v Howard 352. See also opinion of November 25, 1855, Sen. Docts. 34th Cong. 1st Ses. No. 57, p. 30.)
But, as a general rule, other drafts, to which the United