PEOPLE'S NAT. BANK V. EPSTIN.
division thereof. The jurisdiction attaches "to the first district or circuit court in and for the district in which offender shan be found; or into which he is first brought," (Rev. St. § 730,) and the jury, to indict or try such an offender, must be drawn from the whole body of the district. I am therefore of opinion that the indictment, a ctlrtified copy of which was preRented to the commissioner, is invalid, and purports on its face to be found by a body of men not known to or authorized by law. It there10re must be treated as a nullity.
PEOPI,E'a NAT. BANK OF CHARLESTON 'IJ. EpsTIN
(Circuit Court" D. South CaroZina. November 14, 1890.)
In Equity. On bill to foreclose mortgage. Samuel W. Meltnn and .[ohn Wingate, for complainant. J. N. Nctthana, for defendants. BOND, J. This bill was filed by the People's National Bank of Charleston, S. C., against David Epstin and Isabella Epstin, his wife, citizens of the of Tennessee, to foreclose a mortgage given by the wife on her separate and individual property, to secure a loan made by the complainant to Isabella Epstin, amounting to $3,200, with interest from the 14th day ofDecember, 18&6. The answer ofthedefendantlsabellaEpstin, the husband having died, admits the making of the deed of mortgage set out in the bill upon her own separate estate described therein; but she alleges that at the time of the making thereof her husbllnu and codefendant, David Epstin, was indebted to the complninant in the sum of $1,3.')7.05 on a protested bill of exchange, dated the 21st day of May, 1886, drawn by David Epstin on Philip Epstin, in favor of one Kirk Robinson, and indorsed by him to complainant, and that her said husband was likewise indebted to the Ccntral National Bank of Columbia on the 14th of June, 1886, in the sum of $1,193.85, upon a draft drawn by David Epstin on Philip Epstin, in favor of Kirk Robinson, and indorsed by Robinson to said Central National Bank of Columbia. The answer alleges that the indebtedness and the method of it were known to complainant. A part of the sum of money obtained from the complainant bank was applied to the payment of an antecedent mortgage, created
by the defendant in behalf of her own estate, that there might be no lien on the wife's estate, having priority over the mortgage tothe complainant bank. We think the proof clearly establishetl the fact that the transaction of the defendant with the complainant bank was a payment of the husband's debt to it and to the Central National Bank of Columbia, and not It purchase of either bank's claim against the husband; that the money loaned never came into the actual possession of the defendant wife, and that she never had any possession of it for any purpose but to pay his indebtedness to the banks. It appears. also, we think, from the evidence, that the complainant had every reason to know, and did know, if it was not willingly ignorant, that this was the purpose the defendant had in view in mortgaging her separate estate. It also appears that the loan for which the mortgage was given was not made for any purpose relating to the defendant Isabella's separate estate, except so far as it was used to lift a prior mortgage thereon, which prior mortgage is not assailed in these proceedings. These being the facts, there is no difficultyabout the law relating to them. The s'upreme court of South Carolina has so frequently constrned its statutes respecting the powers of a married woman over her separate estate that we cannot be at any loss in determining what powers she has. Even so recently as June 30,1890, in Snlina8 v. Turner,l1 S. E. Rep. 702, a case quite similar to the present one, it was held, as it had been by that court more than a score of times before, that a married woman in South Carolina cannot charge her separate estate for the- benefit of her husband, and in that ease the learned judge who delivered the opinion made some very healthy remarks, which are worthy of attention from all parties who attempt to do by indireetionwhat the law forbids them to do directly. This court is bound to follow the decisions of the supreme court of a state in its construction of its statutes establishing a rule of property therein. . It appears, however, that a prior mortgage given by the defendant to one Stanley waR paid out of the loan obtained from the complainant. Those that ask equity must do equity, and, while the defendant must not be held to payout of her separate estate any of the indebtedness of the husband to the complainant, the complainant will be subrogated to the rights of the mortgagee under the prior mortgage, and the case will be referred to a master, to ascertain how much is due from the defendant upon that mortgage, and a decree will be given for that amount, each party hereto paying its own cosVa
:MARVIN V. UNITED STATES.
MARVIN 11. UNITED STATES.
(O£rcuU COUrt, D. ConnectIcUt. December 19,1890.)
CLERK OF COURT-FEES.
Under Act Congo March 8, 1887, (24 St. 505,) the clerk is entitled, on orders of the court, to pay the accounts of the marsbal and officers, other tban commissioners, as follows: Entering order, 45 cents; copy, 30 cents; certificate, 15 cents; seal, 20 cents; filing duplicate, 10 cents. The statute reqnires that only one copy of the commissioner's account shall be presented, wbich is forwarded to the treasury department. Held, that a certified copy of the order of court approving it should accompany it, and that tlJe fees should be as follOWS: Enterinll: the order of approval, 45 cents; filing same, 10 cents; copy, 30 cents; certificate and seal, 35 cents. Where blanks furnished by the department for of payment of witnesses, etc., contain jurats, the clerk is entitled to a fee of 25 cents for each jurat.
He is also entitled to a fel> of 10 cents for filing each separate voucher returned by 'the marshal with his accounts· Under Act Congo Aug. 4, 1886, (24 at. 253,' providing that none of the money thereby appropriated shall be u!led to pay clerk's per diem for attendance in court except for days w hen business was actually transacted, the burden is on the clerk to show tbat business was actually transacted by the court on the days for which he claims his per diem for attendance. A commissioner is entitled to a per diem for time actually spent by him in hia judicial character as commissioner on criminal oases after the accused were a1'rested, though tbeir cases were ,oontinued.
Tbe petitioner is entitled to a commissioner's per diem for services performed as such, though he performed services as clerk, and received compensation therefor, on the same day.
Under Act Congo June 30,1879, (21 St. 48,) appointing the clerk a jury commissioner ex o!ficto, he is entitled to a Jury oomml8Sioner's compensation for services performed as sucb.
For the annual statement to the attorney general of the judgments, etc., for the preceding- year, the clerk is entitled to compensation for the final abstract at 15 cents per folio, and not to the regular fees for searches. He is entitled to fees for copies of orders to pay jurors, and for seals
The clerk's fees for final records in criminal oases should be in accordance with the folios whicb are contained in the record, and not be limited to four folios. But he is not entitled to a separate fee for entering the oral appearances of attorneys in criminal cases, as this is included in the docket fee. Docket and discontinuance fees should be allowed where the commissioner's records are returned to court and docketed, though the case is discontinued before the information is filed. Under Rev. St. U. S. § 1001, providing that no interest shall be allowed on any claim up to the time of the rendition of a judgment thereon by the court of claims, unless on a contract expressly stipUlating therefor, the cirCUit court cannot allow interest in a suit therefor in such court under 24 St. 505, no contract baving stipulated for such interest.
The commissioner is eutitled to a fee for recognizance of record take.n by him, where justices of the peace of tbe state in which the federal oourt ia beld bave " vower to take such recognizances.