has contributed so directly to injure, whether the part which he played was one of perfidy or folly. The bill is without equity, and should be dismissed. So ordered.
w: D. South Oarolina.
September 30, 1886.)
WITNESSES - DEFENDANT UNDER INDICTMENT WITNESS IN ANOTHER CASEMn,EAGE AND WITNESS FEES.
A defendant in attendance upon court under indictment, under recogni· zance, who is also under recognizance as witness for the United States in another case, is entitled to his mileage and witness fees for attendance in the latter case.
Stokes d; Irvine, for J. L. Addis.
SIMONTON, J. Addis has been in attendance at this term of the conrt, a defendant under indictment, under recognizance. He was also under recognizance as a witness for the United States in a prosecution against another person. Is he entitled to the fees and mileage as a witness? There seems to have been some doubt on this point. The question now comes up on a rule against the clerk. Section 848 of the Revised Statutes allows the per diem and mileage to all witnesses, without qualification, except that, if the witness is subpamaed in more than one case, he gets mileage for one case, and not more than one per diem allowance during his attendance on the court. Sections 849, 850, qualify the words of section 848 with respect to officers of the conrt, and with respect to clerks and other officers of the United States. These get no per diem or mileage as witnesses when called by the government. None others are excepted. Expressio un'ius, etc. Clerks of the court, and the other officers and employes of the United States, are paid for theil' services. Their whole time belongs to the government. When absent from their posts, in attendance on the courts, their pay goes on; and, being thus paid, they can be used by the government without further compensation. Defendants attending court in their own behalf owe no special duties to the government. They are in attendance or they absent them'selves at their own peril. When they are called to the assist· ance of the United States in its case against another perf:<on, they are not performing a public duty which every citizen should perform at his own cost. They are disoharging a service for which the law provides a specifio and fixed compensation. It is said that the mileage and per diem of a witness are intended to reimburse him for the expense to which he has been put in obey-
UNITED STATES V. CRAIG.
ing the subprena; that a defendant is already in court; that, being present on compulsion, the subprena has not put him to any expense. True, he is present t and he is present because he has been bound over to appear and answer. But this does not compel him to appear and testify. When he appears and answers the charge made against him, and submits to the judgment of the court t he does all that he has bound himself to dOt and goes without day. Can the government, under these circumstances, make use of his services gratuitously? He is not in the pay of the government. Except that he must be ready to appear and answer when called, and in fact does so appear and answer, he is master of his own time and of him. self. In a well.considered case (Edwards v. Bond, 5 McLean, 301) a juror who attended, and was also under subprena as a witness for the United States, was allowed the fees and mileage of a witness, as well as his pay as juror. A fortiori, a defendant should be allowed his per diem and mileage for his attendance under Bubprena as a wit. ness for the United States. A.nd it is so ordered.
UNITED STATES V. ClUrG.
(Girouit Oourt. E. D. Miohigan. October 11, 1886:
ACT OF CONGRESS OF FEBRUARY
26, 1885 -
The" assisted immigration It act of February 26, 1885, is a constitutional ex· ercise of the power of congress to regulate commerce with foreign nations.
2. SAME-VIOLATING ACT-OFFENSE, WHEN COMPLETE.
The offense of assisting the immigration of an alien laborer under contract to work here is not Itomplete until such alien has entered the territory of the United States: and a civil action for the penalty prescribed by section 8 will lie in the district into which he enters, or in any other district in which the defendant may be found.
It seems that congress has power to punish by indictment offenses committed by citizens of the Unite!i States upon foreign soil
SAME-OFFENSE COMMITTED ON FOREIGN SOIL.
On Demurrer to Declaration. This was an action of debt to recover a penalty of $1,000 for the importation of a foreign laborer, in violation of the act of congress of February 26, 1885, prohibiting the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States. .The declaration averred t in substance t that on the first day of March 1886, at Point Levi, in the province of Que. bect the defendant, being a citizen of the United States, entered into an express parol contract with one Joseph Morin, an alien, by which