EX PARTE BURDELL.
the same land, to other and different parties. The statute makes ample provision for the contest of applications for the purchase of such lands as those in suit, and provision is also made for the foreclosure of all interest of delinquent purchasers. But when an application to purchase is duly approved, after or without contest, and a certificate of purchase regularly issued upon it, the land is not again subject to entry and sale. until after judgment foreclosing the interest of the purchaser or the holder of certificate. "After judgment foreclosing the interest of the purchaser or the holder of the certificate has been entered, and the certified copies filed, the land,» says the statute, "is again subject to entry and sale." Pol. Code, § 3556. Manifestly, before such foreclosure, the land for which a certificate has been regularly issued is not so subject. .It results that plaintiff in each case is entitled to judgment. Counsel for plaintiff will prepare findings and judgment in accordance with this opinion.
(District (Jo'll/rt, E. D. South Carolina. October, 1887.) 1.
A deputy-clerk is an officer of court. and is not entitled to per diem and when used as a witness for the government in a case tried in the court in whIch he is officiating. The clerks employed by the marshal in his office, his accounts, are not officers of court, and are entitled to fees and mileage. if used as witnesses for the government. .
A deputy-marshal is an officer of ilie court. but, unless he be actually ellgaged In waiting upon the court,. he is entitled to per diem and mileage if he be summoned as a witness for the government. (SyllabU8 by the Court.)
Application for Allowance of Fees as Witnesses. John for petitioLer. H. A. De Sa'V,88eur8, Asst. Dist. Atty." contra. SIMONTON, J. T. S. Burdell is the deputy-clerk oHhis court. I. S. Simons is chief clerk of the marshal. Each of them wass witness for the government in the case of U.S. v. Hayne, tried at this term. An order has been submitted giving to them, with others, fees of witnesses. . , Mr. Burdell was appointed deputy-clerk of the court.. He holds hi':! office at its Rev. St. U. S. § 558. He can sign, a':! clerk, ,,11 process· issuing 'from the court.· Confi8catirm Chse8, 20 Wall. 92. ' He takes the: same .oath of office as the clerk of the court. Section 794.
He keeps the journal" swears 'witnesses, and otherwise conducts himself as clerk. He is included in the list of officers of court who cannot practice as attorney therein. Sections 748, 749. Clearly, he is not entitled to fees as a witness. He is excluded by section849, being an officer of the court, officiating therein. Mr. Simons is chief clerk of the marshal, and: is also deputy-marshal. He is employed with the other clerks of the marshal in k'eeping his !lCcounts with the government; and the records of the office. His title, "chieLclerk," is simply the designation given him by the marshal, fixing his relative position in that .office. As with, all the other clerks in that office; he holds his place at, the will of the lllarshal, was appointed by the marshal, and is paid by him under a private arrangement with him. These clerks have no claim on the governlllent at all for pay, and look entirely to the, marshal., U. S. v. Meigs,95 U. S. 748. When he selects or dismisses his clerks the marshal neither conl1ults the court, reports his action to the court, nor seeks any confirmation of his action. In no sense, then, are Mr. Simons and his fellow-clerks officers of the court. He is not within section 849 t because of the fact that he is chief clerk. He is also deputy-marshal; J?utbe has no reward or emolument differing from those of anyoiher deputy-marshal. He has no duties in and about the court when it is in session. He never comes into or waits on the court. He does not officiate therein. Let him have his fees as a witness.
and others v.
VJirc'l1ifOourt,E. D. Mi88ott'ri, E. D. October 29;1887.}
In.,alawc:ase. where there is a final trial before a.jui.-y, the attorney's docket , fee of$20 allowed by Rev St. U :S.§§ 823. 824. is always to. be taxed; and it is for the court to determine who is the prevailing 'party; The plaintiff in replevin recovered four-fifths of the property claimed. The verdict was set aside. and an'ew trial Ordered, !which .resulted· in ,a j udgI)lent that the plaintiff retain seven-eighths of the property replevied, and that he return to the defendant the remaining eighth. Held, that the plaintiff was the prevailing party, and that l1i8: counsel,wasentitled for each trialto the docket fee of $20 allowed by Rev. St. U. S. §§ 823, 824.
of costs. defendants.
A,·. Ot:t$tleman, for plaintiffs.
, N. Morrison, a question was
In the case of John:H. William3against JaF!pffY' tome yesterday relative to the' taxationof costa'inthatcase. The question is whethertheplain:tiffs' counselis entitled to one docket fee of$20,or to two docket fees of 820 each.