Digest of Decisions and Opinions Relating to Pensions and Bounty Land

38. Recognition after forfeiture.

Where an attorney has rendered no service during the year to which he is entitled under rule 12, and there is no other attorney in the case, the Commissioner may, in his discretion, if the condition of the claim demand it, continue to recognize the former attorney, thereby restoring to him his original rights. Olivia Joyce (Asst. Sec. Reynolds), 7 P. D., 156.

A power of attorney, inoperative when filed because of the prior rights of another attorney, becomes operative when said rights shall have been forfeited. This doctrine has been sustained by a long line of departmental decisions and is adhered to. Appellant neglected the claim for more than a year, thereby forfeiting all right to further recognition. Nathan R. Shappee (Asst. Sec. Reynolds), 7 P. D., 429.

Where an attorney appears in a case and has been recognized and becomes in neglect, but has not been superseded in the attorneyship, his rights are the same as those of any attor ney who is in default and is recognized through the courtesy of the Bureau; that is, he can only preserve his rights by rendering material service before the appearance of another attorney in the claim. Moses Adams (Asst. Sec. Reynolds), 8 P. D.,

(a) After claim is complete.

Recognition of attorneys after claim is completed should be declined. James E. Smith (Sec. Schurz), 5 P. D. (o. s.), 314.

An attorney appearing in a claim under contract with applicant after a prima facie case has been made out and the claim is in the hands of a special examiner, no further services by an attorney being necessary, acquires no right to recognition and is not entitled to a fee. Citing Sarah Robertson, 2 P. D., 398; and distinguishing Jesse Page, 7 Fee Book, 152 (unpublished). Robert McCorkle (Asst. Sec. Reynolds), 7 P. D., 158. (b) After rejection and abandonment.

After rejection and abandonment that attorney will acquire title to recognition who first files a sufficient declaration and valid power of attorney. Citing George Jacob, 7 P. D., 39; also, Charles T. Bennett, ib., 1; Thomas L. Carley, ib., 12. Thomas Bean (Asst. Sec. Reynolds), 7 P. D., 527.

The appellants filed in February, 1877, a power of attorney in a pending claim under the act of February 14, 1871; were recognized by the Pension Office, and their appeal was entertained by the Department. Held, In view of these facts, there is no reason why they should not be recognized in the claim under the act of March 9, 1878. Azel Abel (Sec. Schurz), 5 P. D. (o. s.), 259.

38. Recognition after forfeiture-Continued.

(c) Claims under acts of February 14, 1871, and March 9, 1878-Cont'd. A claim rejected under the act of February 14, 1871, on the ground of insufficient service, but admissible under the act of March 9, 1878, on the evidence filed by the attorney who filed the claim under the former act. Held, That he, and not the attorney who filed the claim under the latter act and who was not required to file any evidence, was entitled to recognition. George Holter (Sec. Schurz), 6 P. D. (o. s.), 31.

(d) Under general law and act of June 27, 1890.

A power of attorney given to prosecute a claim under the general law confers no authority to prosecute a claim under the act of June 27, 1890. Communication to H. S. Kellogg, attorney (Asst. Sec. Bussey), 4 P. D., 171.

(e) When letters of guardianship must be filed.

In a claim for a minor's pension under the act of June 27, 1890, an attorney is entitled to recognition under the rules of practice if he files letters of guardianship at any time before the case is ready for adjudication upon its merits. Minors of John W. Dine (Asst. Sec. Reynolds), 8 P. D., 297.

39. Record.

See SUBTITLES: DILIGENCE; FEE.

40. Refundment.

See SUBTITLE: ASSIGNMENT.

41. Reopening.

See SUBTITLES: DEATH OF CLAIMANT; DUTIES AND OBLIGATIONS; FEE.

42. Requirements, notice of

Where publicity is given to orders specifying the evidence that is required in certain classes of cases, it is not necessary for the Bureau to make specific calls for such evidence in any case described in the order. Such evidence is deemed necessary for the purpose of prima facie establishing such cases, and failure to supply the same within the time fixed by the rules is neglect. William Newman (Asst. Sec. Reynolds),

8 P. D., 65.

43. Revival of attorneyship-none after supersedure.

Where an attorneyship has been forfeited under rule 12 and such forfeiture has been followed by the appointment and recognition of another attorney, the forfeited attorneyship can not be revived. (But this rule is not intended to apply to a case

43. Revival of attorneyship-none after supersedure-Cont'd. where an attorney who had forfeited his rights, after similar forfeiture by a second attorney, has filed evidence that completed the claim, or to a case where, under similar circumstances, he has filed evidence and been recognized by the Bureau; but to a case that may arise in future and to cases then under consideration in which the question of recognition has not been determined.-Note to decision as published.) Patrick Coffee (Asst. Sec. Reynolds), 7 P. D., 338.

(a) Where there is forfeiture but no supersedure of attorney.

The rule laid down in Coffee's appeal (7 P. D., 338), that "where an attorneyship has been forfeited under rule 12, and such forfeiture has been followed by the appointment and recognition of another attorney, the forfeited attorneyship can not be revived," does not apply to a case where a recognized attorney has been furnished the requirements, becomes in neglect, and is not superseded by another. Thomas Sweeney (Asst. Sec. Reynolds), 8 P. D., 223.

44. Rules.

See, as to rule 2, SUBTITLE ASSIGNMENT; rule 12 (16), SUBTITLES: NEGLECT; RECOGNITION; rule 13, SUBTITLE: APPEALS.

45. Ruling 124.

As the issue in question allowed an original pension under the act of June 27, 1890, and not increase of pension under a ruling of the Bureau for the same degree of disability for which pension had been previously granted, ruling 124 of July 21, 1885, is clearly inapplicable. Malvin B. Whitehead (Asst. Sec. Reynolds), 7 P. D., 427.

46. Service-when by second, inures to benefit of first attorney. When an attorney files completing evidence within the year allowed a former attorney under rule 12, and the claim is adjudicated within that year, the evidence thus filed inures to the benefit of the former attorney, it being presumed that he would have completed the claim within the allotted time, and the attorney filing such completing evidence has no title to fee. Catharine S. Leighton (Asst. Sec. Reynolds), 7 P. D., 88. See SUBTITLE: DUTIES AND OBLIGATIONS.

(a) When by first, inures to benefit of second attorney.

The rule that what is done in an attorney's time is to be credited to him and inures solely to his benefit is subject to the further rule that before one attorney may profit by the work

46. Service-Continued.

(a) When by first, inures to benefit of second attorney-Continued.

performed by another he must within the year, or ninety days (as the case may be), allowed him under the rules of practice, render some material and necessary service. And such service must be actual, not constructive, i. e., it must be service performed by himself, and not service rendered by some other person. The mere right to recognition does not give title to fee. The rule is, no service, no fee. Martha J. Craiglow (Asst. Sec. Reynolds), 7 P. D., 517.

See also FEE.

47. State agents.

An agent appointed by a State to prosecute, without cost to applicants, claims for pension against the United States, is entitled to recognition the same as any other agent or attorney. Once recognized, so long as he conforms to the rules of practice he will be protected by them. Jeannette Allen (Asst. Sec. Reynolds), 7 P. D., 293.

When an officer, authorized by the laws of a State to prosecute the claims of persons residing therein, comes into a case under a properly executed power of attorney, he is subject to the Rules of Practice and is governed and protected by them. James Sullivan (Asst. Sec. Reynolds), 7 P. D., 519.

48. Subsequent claims.

In a case under the act of June 27, 1890, where an attorney becomes entitled to recognition upon the default of the attorney of record, and having filed a new declaration, his rights can not be affected by the fact that the claimant, through some duly authorized attorney, subsequently files another declaration, provided he calls up the case at proper intervals. William Coleman (Asst. Sec. Reynolds), 8 P. D., —.

See also SUBTITLES: ABANDONMENT; DUTIES AND OBLIGATIONS.

49. Substitution.

No change of attorneys will hereafter be allowed after a claim has been completed, so far as depends on an attorney. Instructions (Sec. Harlan), 6 L. B. P., 150.

The failure of an attorney for two years to accomplish anything in the prosecution of a claim, the inability of the applicant to carry on a correspondence with him, being unable to write, and the inability to advise with him in consequence of the distance between them, constitute sufficient grounds for

49. Substitution-Continued.

the applicant's substitution of a local attorney, and for the recognition of the same by the Bureau of Pensions. Ruth A. Burgin (Asst. Sec. Bussey), 3 P. D., 217.

(a) Written consent of claimant requisite to.

After April 22, 1882, in pension cases no substitution of one attorney by another will be recognized without the written consent of the applicant to the substitution of the particular person proposed to be substituted; and in cases where there is a legal contract for fee, the substitution of one attorney by another shall not be held to carry with it the rights of the former attorney to the fee contracted for by him unless the claimant shall consent thereto in writing. Instructions (Sec. Teller), 9 P. D. (o. s.), 208.

(b) Power of.

Power of substitution, or new power of attorney from claimant, must be filed in any claim transferred from one attorney to another. J. L. Penniman, attorney (Sec. Chandler), 3 P. D. (0. s.), 405.

A power of substitution, like the power of attorney under which it is granted, must be executed before an officer competent to administer oaths. See In re J. P. L. Weems, claim of Cephas McDonald, February 15, 1892. Robert Bridges (Asst. Sec. Reynolds), 7 P. D., 253.

Grāmatas

Digest of Decisions and Opinions Relating to Pensions and Bounty Land: With ...