HIRSCHBECK 'l7. UNITED STATES.
949
The plaintiff in error also complains of the refusal of the court to charge the jury, upon its request, as follows: (1) "We think the decided weight of authority is in favor of the rule that, in an action of negligence, the defendant has the right to have the question submitted to the jury whether the result which is the ground of action might, under aJl the circumstances, have been reasonably expected, not by the defendant, but by a man of ordinary intelligence and prudence." (2) "It is generaJly held that, in order to warrant a finding that negligence of an act not amounting to wanton wrong is the prOXimate cause of the injury, it must appear that the injury was the natural and probable consequence of negligence or wrongful act, and that it ought to have been foreseen, in the light of the attending circumstances."
It is not necessary to express any opinion in regard to the accuracy of the above propositions of law, or in regard to their applicability to the facts of the case. The plaintiff in error failed to reserve any exception to the refusal of the court to give them in charge to the jury. It will not now be heard to allege error upon any ruling to which it did not, at the proper time, reserve an exception. The instructions of the court were in harmony with the foregoing principles, and a careful examination of them fails to disclose any substantial error. All of the alleged errors argued by counsel have been considered by the court, and we find no prejudicial error in the record. The judgment below is affirmed, at the costs of the plaintiff in error. HIRSCHBECK v. UNITED STATES. (District Court, N. D. New York. October 19, 1894.)
1.
UNITED STATES COMMISSIONERS-FEES.
A commissioner is not entitled to charge for making triplicate, Instead of duplicate, affidavits to the accounts of special deputy marshals, or for triplicate orders for payment of witnesses. A commissioner is not entitled to fees for administerIng two oaths, when duplicate oaths are required, or for arraigning parties brought before him charged with crime. A commissioner is entitled to fees by the folio for drawing recognizances and orders, to the full number of folios employed, in the absence of proof that these' papers were unnecessarily prolix.
2.
SAME.
8.
This was a suit by Oaroline G. Hirschbeck, as administratrix of Joseph G. Hirschbeck against the United States, to recover fees alleged to have been earned by the decedent as a United States com· missioner. Joseph .G.Hirschbeck was a circuit court commissioner for the Northern district of :New York. The plaintiff, as his administratrix, brings this suit to recover various items which were stricken from his accounts by the accounting officers of the treasury department. In making up the accounts of special deputy' marsbals he had charged for triplicate affidavits and triplicate orders for payment. He bad also cbarged for two oaths in cases where he Wflll. requireq to take. an oatb and a duplicate thereof. He had· made charges also for arraigning parties brought before him charged 'With crime. In drawIng recognizances he had charged by the folio, insisting that he was not limited to two or three folios, but might charge for the number of folios
950
FEDERAL :REPORTER,
vol. 63.
accounts of. special deputy marshals, but· not 'for tripIi<!ll.tE!si that. when req:d1l'edlltotake' duplicate oath8;.. 'but 'one oath;· that he had no :authority to arraign a defendant brought before him 'in 'Ilis official capacity. antl' that in preparing recognizances his charge should' be confined to' 'three folios. The issues thus, raised were the principal matters in dispute bet"'een the parties. Theotber questions are settled in favor of the plaintifl.bythe authorities cited in 'the opinion.
F'ra.nkP.:Murray, for plaintiff, W. F.:;&fackeYi Asst U. S. Atty., for defendant COXE"DistrictJudge.'IIhisaction has been submitted without oral argUment. The plaintiff has fm'llililhed a brief'memorandum covering, about two pages, of. legal cap. The defendant has fur· nished· no brief stall. From a letter written by the comptroller to the attorney general and, from theplaintiff'sm.etnorandum I ,the m.ass of allow· have done my beet to, ances and disallowances, the points in dispute between the parties. The pJaintifI' has introduced .testimony to prove that the services charge,j" lprby. the were actually performed.: The de· fendanthas introduced no ,pmofs;except 'a treasury, transcript. con· taWng a statement of the late cotnmil'>si<iluer's accounts·taken from tbe books . I find nothing in the law permitting a charge for triplicate affi· davits to the accounts of special deputy marshals, o'r for triplicate orders for the payment of witnesses. The amounts charged for drawing triplicates should be oisallowed.'· There is no, allthoritybea.ring directly (upon the question whether a commissioner can charge for administering two oaths when. duplic3lteoaths by analogy to U; S. v. Barber, 140 U. 8. 177, l!l Sttpo.:Ot. 751, '];,shall the tutes but a single act for whicn one 'cllarge only made. .<\sits only w:ta magistl.'ate. Ris duty is to determine'whether there is sufficient evidence against the defendant to warrant his being held for the grand jurJ. An arraignment is extrajudicial,.a,ndno.fees can be allowed therefor. f()f drawing and .o'rders seem to be sustained by the decisionsofJ)le United, States courts, especially in the of proof that " papers. are unnecessarily prolix. U.S.,v; Taylor, 147 U. S. 695, ''lOl, 13Sup.. Ct. 479; Crawford v. U. S., 40 Fed. 446, 448'Y' s. v. Ran!1, 3 O. C. A. ,5,56, 53 Fed., 848. .. The other questions in dispute, sofar'aB lam able to understand them, seem to be settled by the decisions of the federal courts in plaintift's favor. There is nothing 'show that the late commis· sio.ner did not do the WOl.''k .for which 'e,harges are made. U. S. v, 134'V.'S. 483, lO,SuPi Ct. 61l,if"U. S;, 140 V. 142"11 Sup. ct·. 743; Roymnr. U. S., 8.8 Fed. 542; CIO'Ugh v. U. S.,
to
jones,
v.
!f'foUowstU,at',the the abQverulings should' be. deducted fl;'Qn1, the accon,nt and that iMgment should be entered in favor of the plaintiff for the balance.!
791.',.,..
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UNITED STATES V. JOSE.
951
UNITED STATES v. JOSE. (Circuit Court, D. Washington, N. D. October 12, 1894.) No. 257.
CONTEMPT-DEGREE OF PROOF REQuIUED.
Accusations for contempt must be supported by evidence sufficient to convince the mind of the trior, beyond a reasonable doubt, of the actual guilt of the accused; and every element of the offense, including a criminal intent, must be proved by evidence or circumstances warranting an inference of the necessary facts.
A shipper of logs by rail, being unlj,ble to pay the freight in advance, agreed with the receivers of the railroad that after transportation each lot of logs should be held in a boom owned by one P., and while so held should be considered as in the possession of the receivers. The thereafter arranged with P. that he should hold the logs as their agent, and should not release any of them except on notice to the receivers, and with their consent. The shipper thereafter induced P. to release one raft without first obtaining the receivers' consent, and the evidence strongly tended to show that he accomplished this by fraud and false statements, but the proof was not sufficient to convince the court beYOnd a reasonable doubt. ,Held, that in the absence thereof, and of proof that he had knowledge of P.'s instructions from the receivers, the ship, ,per could not be convicted of contempt of court in interfering with property in the possession of its receivers.
SAME-INTERF'ERENCE WITH PROPEI{'l'Y IN RECEIVERS' POSSESSION.
This was a proceeding against Thomas Jose for an alleged contempt in interfering with property in the possession of the court's receivers. ' Wm. H. Brinker, U. S. Atty. Greene & Turner, for defendant. Carr & Preston, for receivers, Seattle, L. S. & E. Ry. Co. HANFORD, District Judge. At the instance of the receivers of this court, in charge of the business and property of the Seattle, Lake Shore & Eastern Railway Company, the defendant has beel! arrested and brought before the court to answer a charge of contempt alleged to have been committed by him, in this: That on or, about the 14th day of August, last, said defendant unlawfully, willfully, and clandestinely wrested from the possession of said receivers, and removed out of the jurisdiction of this court, a raft 6f saw logs which were theretofore in the lawful possession of said receivers. The undisputed facts are that the defendant, prior to the date of the alleged offense, was engaged in cutting saw logs a place near to the line of said railroad, and dependent on railroad for transportation of his saw logs to salt water. The logs were delivered to the receivers, and carried upon trucks to Salmon bay, where they were unloaded, and placed in a boom owned and controlled by one A. C. Pates. Timber belonging to other transported by 'the same railroad, was also received and cared by said Pates, who, for a consideration paid by the loggers, attended to the unloading of the logs from the trucks, and placed thelD in a general boom, and afterwards, as required, sorted them, aI1'd made up rafts for towing; having pocket booms, rafting gaps, and