THORNLEY t1. UNITED STATES.
commit him to the care of the jailer. This should be done in writing. The protection of the liberty of the citizen, the safety of the jailer, the accuracy of his claim on the government, all require that no person should be imprisoned except upon an order distinctly stating when, by whom, and for what, he is imprisoned. So with the discharge of a person. How can a jailer safely discharge him without an order in writing? How can a jailer properly present his claim to the government unless he can produce a voucher showing when the.custody ended, as well as when it began? How can a person in custody force his discharge, if he cannot establish by indisputable evidence that he has been discharged? If the evidence remain in parol, or"in pais, the death, removal, or silence of the commissioner may imprison him indefinitely. These items for commitments and discharges are allowed. The items for acknowledgments are proved thus: Recognizances were taken by the commissioner, and acknowledged before him. This acknowledgment is not a mere form, nor is it simply another mode of witnessing. It has been held that the acknowledgment and signature of the commissioner makes the recognizance binding, even if the parties do not sign it. U. S. v. Pickett, 1 Bond, 123. The recognizance must be acknowledged before the commissioner, and is binding because so acknowledged. This gives this form of obligation its distinctive character. A recognizance is more than an ordinary bond. It can be estreated and enforced as a judgment; and its name, "recognizance," that is to say, "aoknowledgment," shows the importance of the acknowledgment before the commissioner. But this recognizance, though the recognizance be signed by several, is hut one act. The parties acknowledge before the commissioner that they are bound, and his signature completes the act. U. S. v. Pickett. supra. But one fee can be charged for the acknowledgment on each recognizance. The tmnscript of the docket for the circuit court was made under the peremptory order of the court. The charge for this is allowed. Let a decree be entered in accordance with this opinion.
THORNLEY 'D. UNITED STATES.
(District (lourt. D. South Oarolina. February 25, 1889.)
1886. United States commissioners are entitled to docket fees earned before the passage of lloct Congo Aug. 4, 1886, which amended Rev. St. U. S. §§ 828. 84';, and took away the right to such fees, allowed by the latter statute.
Pro:OR TO ACT CONGo AUG.
At Law. Action by John L. Thornley against the United States for fees as commissioner.
.. ,JuUm H.:He,Ywafdl'for,plaintiff. :i : ' 'H. A.,:fJeiSausw,fe,Asst.: U. S'.Dist. Atty.
; .. : ' i
" is ,a of the 'courts of the United States ,in this. district·. He brings his action for clocket fees for the period beginning 12th March, 1886; and ending 23d June, 1888; in all, $517. Upon his account it appears that between 12th March, 1886, and 1st/August, 1886, he charged 19 docket fees, to"wit IS,at $3,$48; and 3at $1,83;: in all, $51. He presented in his accounts forwarded to the docket fees in due form. The department claim. for these departmentdisaUowedal.l docket fees anterior to July 1, 1886, and lowed all docket fees between July 1, 1886, and August 4. 1886. The amount thus disallowed is $39. The other items of docket fees were never inoluded in his accounts, and .the claim has never been made upon or disallowed by the department, and has .never been, until now, pre. sented to the court. , Inthe case of Calvert v. U. S., ante" '7,62, (decided this day,) it has been held that the p1'ov,ision inserted in the deficiency act of AQgust 4, 1886, depriving,cQmmissioner,s of docket fees, was not a condition annexed to the special 'provision then made. and was not confined to that aot; but that it was ,permanent in its character, and operated as.an amendment to section 847, Rev. St. U. S. If this is so, the section remained the law until thus,amended, and commissioners are entitled to the fees provided in it. amendment was passed, this plaintiff ,had performed certain servict:lsanterior to its passage, payment of which the section provides for, ltud has earned his money. The government then owed it to him. Let him have a decree for $39. The rest of the account comas within the ruling in Calvert's Ca8e, and must be disallowed. Since AQgust 4, 1886, commissioners have lost the right to docket fees. It is necessary to decide whether a suit can be maintained in this court on a claim not passed Qpon by the treasQry department.
(Circuli OOg,." E. :D. New York. February 12, 1889.)
PLEADmG-AJ(1l:NDMENT OF ANSWER-NEW DEFENSE-MATERIALITY.
In an action on a policy of marine insurance, on application to amend the answer by thll' insertion of a clause in the application for insurance warranting the vesselto be commanded by a certified captain, held, that if the clause to the defendant to accept the risk, defendant was at liberty to avaIl hImself. of sU.ch defense under an amendment made,since the tria!.. ·.U the statement was one not material to the risk, defendant should not now be allowed to set it up as a bar in a case where his amendment as to representation g-ave him opportunity to prove in defense whatever fact he selected for a defense when he made his contract. Hence the motion was denied.
lReported by Edward G. Benedict, Esq., of the New York bar.