FEDERAL REPORTER. THE JACOB BRANDOW. SCHIAFFINO v. THE JACOB BRANDOW.
l])iatr:ict (Jourt. E. D. South (Jarolina.
December 28, 1887.'
DEl-OSrrION-INTERRUPTION OF TAKING-ADMISSIBILITY OF PART TAKEN·
In Admiralty. J. P.K. Bryan, for libelant. J. N. Nathans, for respondent. SIMONTON, J. This case came on to be heard this day. It appears that the testimony of the master was being taken de bene eB8e, under order, before the clerk of this court, some months ago. During cross-examination, the interpreter, whose services had become necessary because of the ignorance of the English language on the part of the witness, lost his temper and left the clerk's office. The cross-examination could not be resumed or continued from the impossibility of obtaining another interpreter. The vessel left port the next day, (Sunday,) and witness went in her. The testimony, as far as it was taken, was produced, signed by the .master. It was objected to by Mr. Nathans, for respondent. The fixed and invariable practice of courts of justice has been, and is, not to admit testimony when the 'opposite party has not had full opportunity ofcl'oss-examination. 1 Greenl. Ev. §§ 445, 554. The point is discussed in Gass'v. Stinson,S Sum. 98. The general rule is stated as above, at least in the law courts, with the possible exception of the death of the witness before the cross-examination is concluded. A case was quoted in the opinion in which the testimony, taken before trial and interrupted in the cross-examination, was rejected, "because it was taken before issue joined, and might have been taken after." No other reason was given. Judge STORY, who delivers the opinion, says in substance that sometimes, in equity, (and the same practice, perhaps, should govern this court,) the testimony of a witness who has not been crossexamined is admitted. But he confines this doctrine to cases in which the failure to cross-examine was the fault of the party having the right to do so, and to cases in which it became impossible to get at the witness again. In the present case the respondent was not in fault. He was not bound to find an interpreter. The wHnp-ss was examined de bene eB8e fnr his own conv,enience. He departed the country of his own accord, ar d so prevented further examination. He can be examined again, as he is within reach of a commission. The testimony will not be admitted, and the case is continued.
1'1UNCE V. TOWNS.
et al. v.
(Oircuit OOU'1't, D. &uth Oarolina. December 6, 1887.)
COSTS-SECURI'l'Y FOR-TnrE FOR ApPLICATION.
A bill for an l'Iccounting was filed against an administrator. The issues were made up, the case referred to the. master, and his report made. the cause having heen on the docket for three terms. when the defendant made a demand on plaihtiff for security for costs. Held that, at this stage of the proceedings, sepurityfor costs can be had only upon the order of court. Complainants in a bill for an account against an administrator were a widow and three children. The widow. of unsound mind. sued by her next friend. Defendant objected to the parties plaintiffs, for the reason that the other plaintiffs had sued in their own names and not by their next friend. Held that, ail there was nothing in the record showing their disability to sue, the objection was untenable. Where the representatives of a deceased intestate hring suit against an administrator under one title and for a common undivided interest, the United States circuit court will, in the absence of any other valid objection. have jurisdiction,although the amount, which on division would come to each representative, may be less than the jurisdictional minimum. In an action against an administrator for an account, no final report having been made, and no acts done showing that in his opinion his trust had termi· nated, h8ld, that the statute of limitations had not begun to run in his favor. Action was brought in 1887 against an administrator, whose intestate had died in 1860. to compel an accounting for, money received in 1872. Held, that defendant could not avail himself of the presumption arising from the lapse of 20 years. . Whenever it is intended to proceed against the sureties on an administrator'sbond. the United States circuit court has original jurisdiction in equity to compel an accounting by the administrator without a preliminary accounting before the probate court. Where the administrator of an estate sues, obtains judgment, and issues execution, deposits the money received from the sale on execution. and draws dividends. as such administrator, he is estopped from denying that he received and is responsible for the mone, as administrator, though his receipt to the sheriff therefor was signed by hIm in his individual capacity. In an action against an administrator for an accounting, held, that defend· ant was not entitled to commissions on money for which no account has ever been rendered, and for which he is in default.
INFANCy-SUIT BY NEXT FRIEND-RECORD.
COURTS-FEDERAL CIRCUIT COURTS-JURISDICTIONAL AMOUNT.
4,. EXECUTORS AND ADMINISTRATORS-AcCOUNTING-LIMITATION OF ACTIONS.
SAME-ACCOUNTING-EQUITY JURISDICTION OF FEDERAL COURT.
SAME-COMMISSIONS-MoNEY IN DEFAULT.
In Equity. On. bill for accounting. Bill for an accounting, filed by Eliza Ann Prince, by her next friend and others, against George F. Towns, administrator of Albertu8 M. Prince, deceased. Isaac M. Bryan, for complainants. William M. Thomas, for defendant.
SIMONTON, J. The defendant took out letters ofadministration on the estate of A. M. Prince, who died intestate in 1860. He collected assets and paid debts, filing his account with the ordinary in 1862, showing a v.33F.no.3-11
balance of 8115.49 due to him as administrator, of which $104.34 was his commissions. He fUed no other aCdount. On thirty-first May, the sheriff of Greenville county the proceeds of 1872, he an execution issued upon a judgment obtained' by him as administrator against one Sullivan, 8622.24. From this must be deducted fees paid· his attorney 'for collecting,-10 per cent.,-leaving a net balance of $560.02. 'For this he is c!lHed to account. Some 8369.52 of this money was deposited by defendant in the Citizens' Savings Bank. The bank failed, and}llliid of it 8206.83. No question has been made in this case as to the 108s on this investment. The, partie!lcomplainant are the widow and three children of the intestate, his 801e heirs and distributees. The case was called for trial. The attorney f()tl;omplainantha8 been in attendance on the court for several days, arid he pressed the case. The attorney for defendant communicated by letter his inability to be present, his general health being such' that he never left the city of Charleston. It i,s the. established practice of this cQurti ,never departed from but in rare ,and exceptional cases, not to force a continuance in ilnvitum, for any other reasons than those laid down in thj'l forty-ninth rule of court. Anticipating this, the defendant's attorney SUbmitted an argument in writing. For these reasons the case is examined minutely. The first objection of tne defendant is that il. demand has been made, on the cClmp1ainants for security for costs, anq that this has not been complied with.. It appears that this demand has been znadevery recently,-'-within a few days. This'cause has been on this docket for three terms. The ,answer was. filed and the case 'referred. The master has held references, and has made his report. When proceedings have been commenced the defendant has the right to make personal demand on the plaintiff's attorney for security for costs,and may refuse to go on until this has been put in. After a cause is at issue, on the docket, heard in. part, security for costs cannot be had but .by an order of court on notice. This has not been done here. It is toolate,in any event, at this stage oHhe case,to interpose the demand in order to prevent a trial. The next objection is that the complainants should have sued by prochein ami. One of them, has done this. Nothing in the record or in the evidence lw3 disclosed theract tha:t any other of the complainants is under disability to sue. The next objection is that the court has no jurisdiction of the case, either because the total amount claimed is below $500, or because the distributive interest coming to each party complainant is less than $500. . The specia.l master has made up a statement, the defendant \:Jvery discount claimed by him. It shows that on twenty-eighth January, 1887, about seven months after bill filed, there was due $523.47. While it is true that parties who have several and distinct interests cannot unite th 13ll.l for the purpose of creating jurisdiction, yet, when the representatives of a deceased intestate bring suit against an administrator, under the Same title, and for a common and undivided interest, the court although the amount which on division would· will
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come to each representative may be less than the jurisdictional minimum. Shields v. Thomas, 17 How.a. The plea of the statute of limitations has been set up. And defendant "dso relies on the presumption arising from the lapse .of 20 years. 1'he statute cannot run in favor of one holding a fiduciary position until and p.nless he does some act showing that in his opinion :the trust has terminnted. Borrne v. (]hiles, 10 Pet. 177; Seymour v. Preet, 8 Wall. 202; Taylor v. Benham, 5 How. 233; Coleman v. Dctvis, 2 Strob. Eq. 334. In this case the defendant has made no return of this money received in 1872, and no final return. No demand and refusal has been made. The lapse of 20 years cannot be relied on, as the transaction for which he is called to account took place in 1872. It is said that this court cannot take jurisdiction .until an accounting has. been had before the. cou,rt of probate. Whatever may be the rule, where it is intended to bring suit on an administration bond, and thus proceed against sureties, this court has originllljuJisdictioll in equity to call a trustee, an executor, oradministrator to an account, and is not sub. servient to or dependent upon any action of any other court. Green. Oreightqn,23 How. 90. . . .. It is, said that the receipt for the $622 was not signed as administrator, and that it was for the proceeds of sale of land. If this last be correct, then the sureties of the defendant adminiRtrator perhaps cannot be held liable for the money. But as far as the defendant himself is concerned, he sued as lldministrator, ohtained judgment, and issued execution as He receipted for the money as proceeds of the' suit to which he was entitled only as administrator. He deposited the money in bank jn bis name as administrator, and drew dividends as such. It does not in his mouth now to say that he did not receive it, hold it, and is not responsible fodt as administrator. He must account for it. In the account taken by the special master and filed with his report the defendant claims the right to deduct the balance due to him on the account filed in 1862. 'the attorney for the complainant resists this. When an administrator files and vouches his account with the judge of probate he is entitled on this account to charge his commissions on receipts and disbursements, and, where the court allows them, they are his property. The account in question was in proper time, and i is correct. But the defendant also charges commissions on the $622. This he cannot do, as he has never accounted for it, has filed no account of it, and is in default. See Wallace v. EUerbe, Rich. Eq. Cas. 49. '. .The statement of the account made by the special master is confirmed, with the exception of the items cbarged by defendant as commi£lsions on $622. Let the account be reformed in this respect, and a decree can be entered forc()mplainants accordingly.
PHILLIPS V. UNITED STATES.1
(Diltriet Court, B. D. Plnnlt/lfJania.
"lUTED STATES COHHISSIONERS-DOCKBT FEES.
December 00, 1887.)
United States commissioners are impliedly authorized to keep a docket, and entitled to docket fees ther.efor.
At Law., Henry HaulhurBf., forplaintifl'. JahnK. Valentine, U. S. Diat.Atty., for defendant.
BUTLER, J. I find the following facts: The plaintiff is a commissioner of the circuit court of this district, and has been during all the time covered by the claim. From the beginning he has kept a docket in which is entered the names bf parties, and all proceedings in each case,-8 docket such as is kept by justices of the peace and similar magistrates. It has been the uniform custom of commissioners in this district to keep such dockets. Nothing has been paid for the service, nor was anydemand made until April 23, 1887, when a claim was inserted in a general account then presented. The claim was not allowed. Suit is now brought under the statute of March 3, 1887, which confers jurisdiction over the subject on this court. On the foregoing facts, and in view of the decisiqn in U. S. v. WaUace, 116 U. S. 398, 6 Sup. Ct. Rep. 408, I think the plaintiff should recover. ground for a distinction between this case and the one 1 see no just cited. It is true that in the latter the docket was kept under an order ofcourt, while here no such, order was made. The duties of commission'ers are defined by statute, and I am not aware of any authority in the court to increase or diminislt them. The duty of keeping a docket seems to be a plain implication from the authority conferred to issue process and hear cases. The commissioner is a magistrate, similar in character to justices ofthe peace and aldermen. The latter magistrates are required to keep dockets, not only by statute, but by force of common usage. A commissioner could not properly discharge his functions without keeping a record of his proceedings., I can, therefore, see no reason for a distinction as respects "docket fees" between commissioners who have kept such a record under order of court, (granted that the order is authOl'ized,) and those who have performed the duty without such prompting. Judgment will therefore be entered in plaintiff's favor for $255, the BUm due for services on this account ·rendered within six years. The balance of the claim is barred by the limitation named in the statute.
'Reported by C. Berkele,y Ta,ylor, Esq., of the Philadelphia bar.