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.
IN RE HERRES.
(Olrcuit Oourt. D. Minneaota. December 16,1-887.)
In proceedings for t4e extradition of a fugitivefriom justice, a preliIQ.insry mandate from the executive department. of the government is not necessary under the'extradition treaty:of 1842. between the United States and 'Great Britain; the act itself containing no provision to that effect, and because no extradition can be consummated, without action by the executive in the last
i ' " . ' ,
SAME-AuTHORITY FOR PROCEEDINGS:"-EvIDENCEOF.
A complaint :flIed before the United States commissioner for the extradition of an alleged fugitive from justice did not disclose the :fact that. the proceedings were initiated by the Canadian or that the party filing the same Was acting other'than in his private capablty; but it appeared from the testimony taken before the commissioner that the'icbmplaining witness was acting un,qer direct' authority from the officials of the Canadian government. Bela, that it is sufficient If such fact appear elsewhere in the proceedings than in the complaint.
Depositions for tM extradition of an alleged fugitive from justice showed that e forgery had been committed by one John K. and a witnesstestified to have seen prisoner in Torontq, where the crime was charged to have . been committed. When attested, prisoner denied his name, claiming it was Walker. but subsequently he swore to and signed an affidavit for change of venue as John K. Herres.· On habeaa corpua, petitioner objected that the ,evidence failed to show that he was guilty of the offense'charged against him in Canada. Held; that extl!adition proceedings are like preliminary examinations, and if it appear th8t a crime has been committed, and that there is probable reason to believe that the defendant isgUllty of crime, substantial justice requires that he should be put upon trilL\. ,
On habea8 corpua for the discharge of a prisoner, held under extradition proceedipgs, it was illsisted that the depositions of complaining witness were not properly certified and authenticated. 22 St., U. 8.216, provide that depositions shall be received if they be properly'and legally authenticated, so as to be entitled to be received for similar purposes before tribunals of the foreign from which t4e accused shall have :fled.. geld, that the authentication was in the very language of the statute, and these depositions were as such entitled to be received for similar purposes. Rev. St. U. B. 1674, define "'Vice'consul " ss follows: .. , Vice-consuls' and 'vice-commercial agents' shall be deemed to denote consular officers who shall be substituted, temporarily, to fill the places of consuls general, consuls, or commercial agents, when they shall be temporarily absent, or relieved from duty." Depositions for the extr.adition of an alleged fugitive from justice of On,tario, Canada, having been autheJ;lticatedby the vice-consul of the United'States, held, that prisoner's claim that a vice-consul is a deputy, and not the principal diplomatic consular officer authorized to authenticate such papers, is unfounded.
Petition for Writ of Habeas CorpU8. On appeal from the district court. John Karl Herres, an alleged fugitive from justice of the province of Ontario, in the dominion of Canada, held in custody under extradition proceedings,. applied for a writ of habeas corpU8, upon the return of which
Reversing 62 Fed. RllP. 588.