the transfer· of the. bill of lading. covering them to the defendants. From these news it becomes unnecessary to consider the remaining assignments of error. Judgment reversed, and cause remanded for further proceedings in accordance with this opinion.
(CIrcuit Court, D. Colorado. February 18, 1893.)
STATUTORY NEW TRIAL-FOLLOWING FORMER DECISION ON WRIT Oll' ERROB.
Where, on a new trial to determine the title and right ot possession of land, under a state statute giving. a right to a new trial in such cases, the material taots, as disclosed by the evidence, are substantl.a1ly the same as the facts pn the former trial, and substantially as the facts before the circuit court· of appeals on the review of such former trial, the case will. be disposed of as indicated by the appellate oourt.
Action by Lewis a.Thatcher against Joseph Gottlieb Plaintiff's motion for a new trial denied. For decision of circuit QOurt of appeals on mit of error on ajudgment entered on a former trial, see 51 Fed. Rep. 373, 2 Q. a. A. 278. V. D. Markham and J. W. Mills, for plaintiff. R.T. McNeal. for defendant.
to determine the title aI)d right ot possession of land.
RINER, Diamct Judge. This case is before the court on motion for a new trial. The case has been three times tried in this court and once in the court of appeals. The first trial resulted in a finding in favor of the plaintiff, and the defendant took a new trial under the statute. On the second trial of the case,judgment having been .entered in favor of the plaintiff, the defendant carried the case to the court of appeals, (51 Fed. Rep. 373, 2 a. O. A. 278,) where the judgment. of the circuit court was reversed, with directions to enter a judgment for the defendant, which was done, and thereupon the plaintiff took a new trial under the statute, and the case came on again for trial before this court and a jury at the November, 1892, term. At the conclusion of the evidence the court directed the jury to return a verdict for the defendant, which action of the court is now for error, and is made the basis for this motion. Since the motion was argued, I have examined very carefully the transcript of the record before the court of appeals, and am satisfied that the material facts as disclosed by the evidence lipon this trial are substantially the same as they were upon the former trial before this court, and substantially the same as the facts before the court of appeals. When that court held the facts as a basis for an opinion directiIig a verdict for the defendant,. did it not, in effect, say that the same facts, when again offered in evidence, would be again held sufficient to sustain a like opinion? I think there can be but one answer to this question.' In the' concluding part of the opinion the court of appeals say:
V. UNITED STATES.
"Even it it be trne that the conveyance made by Annie O. McOormick to Lewis Thatcher terminated the r1.ght of the trustee to sell the property, as was held by the trial court,...,.-a question npon which we express no Opl.niOLl, -it is nevertheless entirely clear that Gottlieb relied upon the advice given him by counsel that the note secured by the trust deed could be lawfully levied upon and sold under execution, and believed that the purchase of the note gave him the right to subject the land to sale for the purpose of paying the debt evidenced thereby. In our judgment, the facts found justify but one oonclusion, and that is that, in paying the taxes upon the land since 1879, Gottlieb was clearly acting under color of title obtalned in good faith, and has· thus become entltled to the land under the provisions of the statute of Colorado."
The facts being substantially the same upon this trial, I think it was clearly the duty of the court to direct a verdict for the defendant. The motion, for 'a new trial will be denied, a judgment entered upon the verdict, and the plaintiff allowed 60 days within which to prepare and present a bill of exceptions for allowance. '
KINNEY v. UNITED STATES.
(Olrcult Court, D. Connectlcut. February 6, 1893.)
No. 385. L
UNITED STATES MARSHALS-FEES-EvIDENCE-MEMORANDA.
Entries and memoranda made by a deceased United States marshal are admissible in evidence in favor of his administratrix in an action by her against the United States to recover for services and disbursements of the Intestate in his lifetime. The approval of a United States marshal's account by a circuit court of the United States' under Act Feb. 22, 1875, (18 St. p. 333,) is prima fade evidence of its correctness, and, in the absence of clear and unequivocal proof of Inlstake on the part of the oourt, is conclusive.
SAME-EVIDENCE-ALLOWANCE BY COURT.
SAME-ATTENDANCE AT "HEARINGS."
A hearl.ng on the question of admission to bail, or on motlon to adjourn, or on arraignment· or commitment, constitutes a "hearl.ng and deciding," for the attendance upon which a United States marshal is entitled to a per diem fee.
A United States marshal is not entitled to per diem compensation for attendance before the court where no certificate is filed showing that the court was open, and busmess transacted. Marvin v. U. S., 44 Fed. Rep. 41)5, followed. A marshal is not entitled to expenses mcurred m endeavoring to make an arrest, when he had no warrant, and couid not have arrested the accused if found. A marshal is entitled to expenses incurred m making an arrest, although snch arrest was not made by the deputy sent for that purpose, but was made in consequence of information acquired m traveling about for that purpose, under the direction of the district attorney; and the marshalls not restrIcted to the statutory allowance of two dollars per day. He is also entitled to the expenses of the deputy in thus traveling about under direction of the dietclct attorney, it appearl.ng that the arrest tollowed directly from information thus obtained.