Page:Federal Reporter, 1st Series, Volume 3.djvu/318

 tNITED STATES V. PINOVBB. 811 �ceiving is entitled to maie this defence. Whether, however, these authorities have impaired to any estent, or in reference to a particular state of facts, the general rule that an agent, known and treated with as such, cannot be compelled to pay baek money received by him under a mutual mistake of fact and paid over to his principal, and if 80 whether the present case cornes within them, it is unnecessary to determine, in view of the conclusion which I have reached in respect to the powera of the assistant treasurer, and the liability of the defendant by reason of his having received this money from that officer. �In the case of Cooke v. U. S. 91 U. S. 389, the question of the power of the assistant treasurer to bind the United States, in the matter of adjusting and paying claims against the gov- «rnment, was considered, and it was held that the secretary of the treasury alone has power to represent and bind the govemment in his department in this respect ; that the pow- ers of the assistant treasurers are limited and fixed by public laws, of which ail persons must take notice. This case was not cited upon the trial of the present action. It was assumed, upon the trial, that the assistant treasurer at New York had authority to represent the govemment in the redemption of this bond. It was upon this assumption that the ruling was made that it was incumbent on the plaintifif to show that the assistant treasurer gave notice to the defendant that he received the bond subject to examination and acceptance at Washington, in order that the plaintif might have the benefit of that notice. �But it was held, in the case of Cooke v. U. S., that ail tha acts of the assistant treasurer in paying the debts of the United States are so subject to the approval of the secretary as matter of law. The question of actual notice was therefora wholly immaterial. Upon the same assumption it was ruled that if, without such notice, the defendant had paid over the money to his principal, it would shield him from liability ;. the theory of the charge being that in respect to this transaction the assistant treasurer was, in legal effect, the United States, and could bind the govemment by recognizing and treating with the defendant as the agent of another; and that, if he ����