RAND V. UNITED STATES.
(.DI.strict Court, D. Matne. Nov(mber 28, 1891.
UNITED STATES COMMISSIONERS-FEES-RES JUDICATA.
The rejection by a district court of a United States commissioner's claim for fees because of a supposed want of jurisdiction is no bar to a subsequent suit therefor, when the circuit court, in a similar: case, has held in favor of the jurisdiction.
S. SAME-DoCKET FEES-RETROACTIVE LEGISLATION. . The clause in the deficiency act Of August 4, 1886, (24 St. 274,) which declares that
United States commissioners shall receive no docket fees, being general legislation, intended as an amendment to Rev. St. U. S. § 847, that clause must be held prospective only in its operation, and docket fees earned prior to its passage must be al· lowed.
SA-ME-PRELIMINARY EXAMINATION OF OFFENDERS-FEES FOR RECOGNIZANCES.
Rev. St. § 1014, declares that the examination of persons charged with offensll!l against the United States is to be conducted agreeably to the usual mode of process in the state. Rev. lilt. Me. c. 133, §§ lOJ 11, provide for taking the recognizance of an offender upon any adjournment of tne examination. Hel,d, that a United States commissioner examining offenders in Maine is entitled to fees for taking their recognizances from day to day. Fees for such recognizances must be allowed, although the instruments exceea the length arbitrarily fixed by the comptroller as sufficient, when, upon inspection, they disclose no unnecessary verbiage. Persons arrested upon a complaint charging one offense cannot be held thereunder if the examination discloses a different offense, and therefore complaints cannot be objected to as too long because of charging more than one offense. Commissioners are entitled to their per aWm fees pending the preliminary examination of an offender, even tllOugh no witnesses are examined and no arguments heard on some of the days. U. S. v. Jane!.) 10 Sup. Ct. Rep. 615, 134 U. S. 483, and U. S. v. Ewing, 11 Sup. Ct. Rep. 743, 140 u. S. 142, followed.
SAME-LENGTH OF RECOGNIZANOES.
5. SAME-LENGTH OF COMPLAINTS-CHARGING DIFFERENT OFFENSES.
6. SAME-PER DIEM FEES.
7. SAME-FEES FOR RECOGNIZANCES OJ!' WITNESSES.
. Commissioners conducting preliminary examinations are entitled to fees for recognizances of witnesses fr!Jm day to day, and fOT final appearance at court, as well as fees for the acknowledgements thereto, but only for one recognizance in each instance for all the Witnesses;. and the length of such recognizances must be left to the commissioners' discretion. Commissioners are entitled to fees for entering returns of warrants and. sum· mons, for filing complaints and warrants for commitments from day to day, and for the return of proceedings to court, /lond copies thereof, the same not being unlleceBo sarily prolix. .
SAME-RETURNS AND COMMITMENTS.
When a prisoner is transferred from state to federal custody, a new warrant is necessary, and the commissioner is entitled to a fee therefor.
At Law. Petition by Edward M. Rand for allowance of fees as a United States commissioner. Judgment for petitioner. Edward M. Rand, pro Isaac W. Dyer, U. S. Atty.
WEBB, J. This petition is for the allowance of fees as commISSIoner of the circuit court, which have been rejected by the comptroller of treasury. As originallypref'ented, the. claim amounted to a total ()f $409.85. Subseqnent amendments made under recent decisions ofthe supreme courts, in respect to fees of various officers, have stricken .out leaving only the sum of$247.10 to be items
upon by this court. The case is heard on demurrer, and the contention by the United States is that, thougl:1,the servoices.have all been performed, the petitioner is not legally authorized to charge them or to he paid for his work. Though the items are. numerous, they belong only to a few classes. A portion of these items were included in the proceeding by this same petitioner in 1888. and was then, upon the authority of Bliss v.U. S., 34 Fed. Rep. 781, held not to be "'ithin the jurisdiction of this court. Rand v. U. S., 36 Fed. Rep. 671. Such disposition of the claim, for supposed want of jurisdiction to pass upon its merits does not opE:rate as a bar to this petition. The former ruling against the jurisdiotion, because the demand has been rejected by the comptroller prior to March 3, 1887, must be regarded as erroneous, under the decision of the circuit court in this circuit and district in Harrrwn v. U. B., 43 Fed. Rep. 560. In this portion of the petition are charged docket fees aggregating $17, prior to August, 1886. The supreme court has declared that the proviso in the deficiency appropriation act of August 4, 1886, (24 St. 274,) was general legislation intended as an amendment of Rev. St. § 847, and not a mere restriction upon the use of the moneys appropriated by that act. U. B. v. Ewing, 140 U. S. 142, 11 Sup. Ct. Rep. 743. The enactment was, then, prospective in its operation, and had no retroactive effect upon docket fees before earned, and upon the authority of U. B. v. Wallace, 116 U. S. 398, 6 Sup. Ct. Rep. 408, the petitioner is allowed the $17 so charged. In the petition so amended no other docket fees are claimed. The items are: (1) Recognizances of parties, from day to day and final; (2) complaints; (3)per diem allowances; (4) recognizance of witnesses; (5) enterinJl: warrants and summons and warrants to commit; (6) copies of returns to court; (7) acknowledgments to recognizances; (8) warrants to commit from day to day. The charges for recogniZances of defendant from day to day are objected to as unwarranted. The objection has no weight. Proceedings for examination of persons charged with offenses against the United States are to be conducted" agreeably to the usual mode of process against offenders in such state." Rev. St. § 1014. The statute of the state of Maine expressly provides for recognizance of the party uEon any adjournment of an examination. Rev. St. Me. c. 133, §§ 10, 11. A further objection is that the recognizances exceed the length arbitrarily decided by the comptroller to be sufficient in all cases. Inspection of the records of these recop;nizances does not reveal any useless and unjustifiable verbiage. On the contrary, they are carefully and prudently framed for the protection of the government, if resort to the security of the recognizances should be necessary, and at the same time preserve the rights of defendants· . The fees for complaints are proper. Rand v. U. B., 36 Fed. Rep. 672, 38 Fed. Rep. 666; U. B. Ewing, 140 U. S. 142, 11 Sup. Ct. Rep. 743. It is suggested by the comptroller that a party arrested and brought before a Commissioner upon a complaint for one offense mar, without
any new proceeding, be bound over, or committed to answer for anything else in respect to which, in the progress of his examination, evidence against him may appear. Upon this ground complaints, charging in proper terms distinct offenses, are declared to be of excessive length, and fees for the same are reduced. The reasoning is, if upon the hearing it should transpire that the defendant cannot be held upon the charge made in the complaint, but had committed some distinct offense, "there would be no difficulty in holding him to answer for the latter, because the defendant is not held by the commissioner-upon the .papers issued, but upon the testimony as it is developed upon the hearing." To such a proposition no answer is necessary. The fees for per diem allowance have been withheld upon the theory that such fees are not chargeable upon days when there was no examination of witnesstJs or arguments of counsel. This question may be regarded as now finally determined in favor of the charges. U. S. v. Jones, 134 U. S. 483, 10 Sup. Ct. Rep. 615; U. S. v. Ewing, 140 U. S. 142, 11 Sup. Ct. Rep. 743. Recognizances of witnesses from day to day, when hearing was adjourned,. and final, for their attendance at court, are proper charges. The length of the recognizance must be .left to the discretion and integrity of the commissioner. It is not practicable to say beforehand what length is sufficient in all cases. By amendment, all charges in excess ofone recognizance for all the witnesses in a case have been stricken outfrom the petition. Like amendment has been made in respect to acknowledgments of recognizances. The charges are proper. U. S. v. Ewing, 140 U. S. 142, 11 Sup. Ct. Rep. 743. The return of proceedings to court, and copies returned to court, were in compliance with the requirement of a rule of court. There is no evidence that they were unnecessarily prolix. The petitioner has a right to be paid for them. He is also entitled to receive the amounts charged for entering returns of warrants and summons, and for filing complaints and warrants. Rand v.U. S., 38 Fed. Rep. 666; U. S. v. Ewing, 140 U. S. 142, 11 Sup. Ct. Rep. 743; U. S. v. Barber, 140 U. S. 177, 11 Sup. Ct. Rep. 751. The theory that no warrant is necessary when the party accused is already in custody under process from the state court is untenable. When the state's. custody ceases, there mnst be a proper process to authorize holding him in behalfof the United States. Warrants of commitment from day to day during the examination before the commissioner are proper. Rev. St. Me. c. 133, §§ 10, 11; U. S. v. Ewing, 140 U. S. 142, 11 Sup. Ct. Rep. 743. On examination of treasury statements 116,967 and 121,602, I find in them errors of computation amounting together to $2.15, as claimed in the petition. No resistance to correction of these errors is made. No valid objection is found to any charge in the petition 8S amended, and judgment is ordered for the petitioner for the sum of $247.10, and for '
FEDERAL REPORTER, vol. 48.
SPBINGFIELD FIRE & MARINI<) INS. Co. v. RICHMOND & D. R. CO., (SAVANNAH FIRE & MARINE INS. CO., Intarveners.)
(Oircuit Oourt, D. South Oarolina. December .9,1891.)
1. PARTIES-AcTlONS ():l!'ToRT-INsuRANCE.
Property covered' by .many different insurance policies' was destroyed t11rough the negligence of a railroad company, and a few of the insurers paid their proportion of the loss, taking an assignment of a proportional patt of the claim against the railroad company. Suits were brought against the other insurers, pending which one of the. which bad paid sued the railroad on its aRsigned cause of action, whereupon another one petitioned to be made II party plaintiff, and that the insured be also joined as plaintiff. Held that, as the latter had the legal title to the cause of action, and tbe predominant beneficial interest therein, it could not be compelled to join as plaintiff agaiilst its will. notwithstanding that the cause of :action, being for a tort, was indivisible, and only one action could be maintained tQ.ereon.
, Tho' right to join the insurer, either as plaintiff or defendant, cannot be asserted under ,Code'Civil Proo.. S. C. § 143, proyhling that "when oomplete determination of a controversy cannot be· made without the presenCe of other parties the court must cause them to be brought in, "as this section must be read in connection with section 140, which provides that I'oftha parties to an 1Io0tionthose who are united in interest must be joined as plaintiffs or defendants; but if the consent of \lnyone Who should have been joined as plaintiff cannot be obtained he may be made de,and by thus reading them it is apparent that their provisions were denved from the praotice in equity, and therefore can have no application to an 00tionat'laW in a federal oourt.
At Law. Action by the Springfield Fire & Marine Insurance Company against the Richmond & Danville Railroad Company. Heard on the petition of the Savannah Fire & Marine Insurance Company to be made a party plaintiff, and to have the Petzer Manufacturing Corupany also joined as plaintiff.· Petition denied. Abney & Thoma8, for plaintiff. Cothran, Wel18. An8el & Cothran, for defendant. JUlius H. Heyward, for petitioner. SIMONTON, J. This is a case of novel aspect. In order to understand is necessary. The Pelzer Manufacturing Company had over a thousand bales of colton stored with Cely· Bros., warehousemen. The cotton was insured in bulk in the name of Cely Bros., as warehousemen, in. several insurance companies, for some $45,000 in the aggregate,· each insurance company taking its own several risk. 'fhe cotton was all consumed at one time by a fire originating, it is said, from sparks oCa passing locomotive belonging to the Richmond & Danville Railroad Company. It is also alleged that the warehouse was on the right of way of the Richmond & Danville Railroad. The cotton having been totally destroyed, Cely Bros. assigned to the Pelzer Manufact'uring Company all the policies in which the cotton belonging to it was insured. This company proceeds to enforce them. One of the com· panies, the plaintiff in this action, paid its share of the loss to the Pelzer Manufacturing Company,-some $4,500. Taking assignment from the ,Pelzer Manufacturing Company of so much of its claim upon tlie railroad company as would cover this sum, it brought suit in the