fue assignee in bankruptcy, occupies no different position in respect from any other third person. The syndic asks that the property be taken away from the attaching creditor, and delivered over to him to be distributed pro rata among all the creditors, on the ground that the statute of congress required a dissolution of the attachment. 'The answer to this is that a judgment maintaining the attachment stands now between the syndic and this property. The very force of the judgment in a case where there has been an attachment under our law gives the plaintiff the right of having his judgment satisfied out of the proceeds of the property in preference to other creditors, who were to be paid in the order of the date of their attachments. 1 Hen. Dig. verbo "Attachment," § 11, par. 8, p. 148. My opinion, therefore, is that the plaintiffs, MuseI' Bros., have a prior right to the fund in the registry of the court by virtue of their judgment maintaining their attachment. The judf,rment must be accordingly.
WHITTLE et al. v. ARTIS et al. S.UIFJ v. BOOKWAL'l'l<JR. (Circnit Court, S. D. Ohio. May 12, 1893.)
One or more tenants in common may sue in ejectment to recover their undivided interest without joining all their cotenant>;.
IN CO)DION-NECESSAIW PARTIES.
SAME-OBJECTIO:N TO ,JURISDICTION-DISMISSAL AS TO UEltTAIN PLAINTIFFSHIGHT TO PROCEED.
An action of ejectment, in which partition at law was also sought. was begun in the circuit court for the southern district of Ohio,-some of the plaintiffs being citizens and residents of Virginia; others, of Maryland; and two, of the District of Columbia. All the defendants were citb.ens and residents of the southern district of Ohio. On defendants' objection the joinder of citizens and residents of the District of Columbia as parties plaintiff wa>: held to be fatal to the jurisdiction of the court. On plaintiffs' motion the action was dismissed without prejudice as to the residents of the District of Columbia, as was also so much of the action as sought partition, leaving the action pending as an action in ejectment by the remaining plaintiffs. Held, that the remaining plaintiffs were entitled to proceed with the action, and that it need not be dismissed by reason of the objection to the jurisdiction.
The court being without jurisdiction of the action, as originally brought, the service of summons was ineffectual, and, defendants having appeared specially for the purpose of objecting to the jurisdiction, the remaining plaintiffs could proceed in the case only by obtaining new summons and service.
At Law. These were actions of ejectment. The first-entitled case arose in the eastern division, and the second in the western division, of ,this district. They are now heard together on motions to dismiss. Denied on terms. Matthews & Cleveland, for plaintiffs. R. A. Harrison and W. H. West, for defendants.
SAGE, Distric.t .Judge. These cases involve the same questions. They are in ejectment against cotenants for an undivided interest in lands. Some of the plaintiffs are citizens and residents 01' Vir· ginia, and others, of Maryland. In each petition, as it originally stood, partition at law was also sought, and Jane Ba,rr and her husband, David Barr, citizens and residents of the District of Columbia, were joined as plaintiffs; all the defendants being citizens and residents of the southern district of Ohio. Up()n the defendant,s' objection, under a special appearance for that purpose only, this joinder was held to be fa:tal to the jurisdiction of this court. Thereupon, on m()tion of the plaintiffs, the action was dismissed without prejudice as to Jane Barr and David Barr, as was also so much of the acdon as related to partition of the real estate described in the petition. These dismissals left the actions pending as actions in ejectment by the rem.aining plaintiffs. Now the objection is made that the case cann()t proceed on their behalf only, and it presents the questions whether, by reason of the objection to the jurisdietion, the actions must be dismissed, and whether all the tenants in common are necessary parties to the action. They were necessary parties to the action for partHion. But that action, although joined with the action in ejectment, was separable and independent, and might be, as it was, dismissed without prejudice, and without affecting the jmisdiction of the action in ejectment. If 11rs. Barr and her husband, as plaintiffs in the action in ejectment, could be di'smislsed therefrom, and the action still be maintained, the action could proceed; otherwise, it must be dismissed. Jane Barr and her husband are not necessary parties to the acti()n in ejectment. At common law, tenants in common cannot join, but mllst sever, in separate demises, in a declaration in ejectment. Chit. PI. 71. A tenant in common recovers ()nly his aliquot part or share. Mobley v. Bruner, 59 Pa. St.481; Minke v. McNamee, 30 Md. 294; Jone.'l v. tValker, 47 Ala. 175. Two or more tenant8 in common may sue in ejectment, or anyone may sue alone for his share. Tilden v. Tilden, 13 Gray, 108; Bush v. Bradley, 4 Day, 303; I)enrod v. Danner, 19 Ohio, 218; Shepard v. Ryers, 15 Johns. 501. I see no necessity for a dismissal, but service of SUnmlOI1JS in an action over which the court at the time has no jurisdiction brings nobody into court. The appearance was special, for the purpnse only of objecting to the jurisdiction, and there must be new summons and service, (excepting in No. 570, where there was a general appearance,) and the plaintiffs must pay the costs alveadv incuITed. Upon these terms the motion to dismiS8 wrube overruled.
CLOUGH v. UNITED STATES. (Circuit Court, W. D. Tennessee. April 13, 1893.) No. 3,127.
UNITED STATES COMMISSTONERS-FEES -
A commission.er of the United States courts can charge only one acknowledgment fee for the plincipal and sureties in a bail bond, and not a sepamte fee for each. U. S. v. Ewing, 11 Sup. Ct. Rep. 743, 140 U. S. 142, followed. A commissioner, in Tennessee, cannot charge a fee for affixing seals to writs. U. S. v. Clough, 55 Feel. Rep. 37o, followed.
OF BAIL BONDS.
SAME-DnA WING CmlPLAI:-lTS.
A llnited States commissioner is entitled to fees for drawing complaints in criminal cases at the rate of 20 cents per folio. U. S. v. Ewing, 11 Ct. Hep. 743, 140 U. S. 142, follo\ved,
SAME-COPIES 0.' PnocEss-DRAFTING AFFIDAvrTS-CERTIFyr:-lG OATHS.
A commissioner is also entitled to fees for copies of process returned to court in cases where preliminary examinations in criminal cases have been had; for drafting affidavits of sureties in bail bonds; for certifying to oaths officially taken before him; for entering the returns of, and filing, pro ess, and for issuing mittimus writs. U, S. v. Barber, 11 Sup. Ct. Hep. 751, 140 U. S. 177; U. S. v. Ewing, 11 Sup. Ct. Rep. 743, 140 U. S. 142, followed.
the amount due them for attendance before him, as commissioner. U.
SAME-CERTIFICATES TO ·WI'rNEssEs.
He is likewise entitled to fees for certificates furnished to witnesses, of
S. v. Barber, 11 Sup. Ct. Hep. 749, 140 U. S. 164, followed.
SAME-SETTING Ou'r NAME OF DEFEKDANT.
If the department refuse payment of the account o.f a clerk of a federal court for 'lervices rpn dered tlie government in cases of arrest, on the ground that the names of the defendants were not given, and a duplicate of the account filed in the clerk's office shows who the defendants were, and the records of the court show that tlrey were subsequently indicted and tried, the court will direct payment of the fees.
SAME-FrLI1'\H PAPERS-ENTERING OHDEHS-HECOHDING BONDS.
The clerk of the federal courts is entilled to charge for filing papers !'lent in by commissioners; for entering ord('rs approving officers' accounts; for recording official bonds on minlltps; for making final records; and for certifying to marshal's fees of jurors and witnessps. He is entitled to a fee of 10 cents for filing a rpgistry rpport, under Rev. St. § 828, allowing that fee for filing "every declaration * * * or other paper."
- COPIES OF M]'J''l'l'''IUS-COPIES OF SCI. FA.
DAME-hr"r'\G Rr,HISTHY HEPOBT,
He is also (mtitled to charge fees for copies of mittimus writs issued under Hev. St. § 1028. and for copies of writs of sci. fa. issued under Hev. St. § 716; they having been issued by order of court, and not as matter of course, in tlre routine of office.
SA;\!E-SEVEHAL DEFEKDAN'l'S-SEPAHATE \Vm1's.
\Vhere several defendants are jointly indictpd for com'piracy, the department erred in refusing paynlPnt of the charges of the clerk for capias writs for theil' arrellt on the ground that a separate writ was issued against each dpfendant under the practice of the court. 11. 'WEA .JuHons. The swearing on the first day of the term of persons summoned as grand and petit jurors, to make true answer touching their qualifications as