,376

FEDERAL REPORTER.

rectory only. The language is that the" appointment" shall be filed, anq this language alone, if there were no other considerations on either be held sufficient to imply that the appoin¥nent is complete before.it is filed. But the substantial ground of my conclusion is that the filing of the paper is not of the essence of the act to be done, but relates solely to the manner of procedure. The essence of the act is the determination and decision on the part of the circuit judge-First, that the public interest requires that ajudge be designated; and, secondly, that a particular judge is selected for that purpose. The act of putting this on paper and signing it,if signature be necessary, is perhaps the last and essential element of that determination. The filing of the notice seems to have no office except to notify the clerk and the judge that the . determination has been made. A,gaihst this view Of the scope and intent of the statute nothing can be found in the. words of the statute itself. There is no prohibition against 'procedure otherwise than is directed. The provisioIithatthe circuit judge may "designate and appoint" is complete in itself, and the provi£ion as to filihp: the appointment is afterwards added in separate sentences. There is nothing in the words or in their collocation which obstructs the separation of those provisions which appear to me anddirectory ftom those which are essential and mandatory. If it were held the filing in the Clerk's office is essential it would Seem that there . could be, no: escape from the conclusion that the sending of l:l. copy to the designated judge is also essential. Such a conClusion would,as'it seems to me, be absurd. Forexample,:tliere might be il. case in which the circuit jUdge had made his determination and appoinfment, had reduced his appointment to writing, and· delivered it' to the judge therein appointed, and that judge had himself delivered the paper to the clerk of the distnllt court,and the clerk had filed and entered the same, and yet the authority of the judge would be incomplete because the clerk had not handed him in. return a certified copy of the' paper of appointment. This cOpy, it is observed, could serve no purpose except to notify him 'of that which he already knew, since there is no provision that he shall preserve it by way of evidence ofthe facts. I cannot think it safe to folIowan argument· which leads t6such conClusions. The motion 'in arrest of judgment is overruled.

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.

MIsSOURI

t'i':'

v.

TEXAS

,'"

&,P.Ry. Co., (DEHONEY, Intervenor.)l

.i'· . : ' . - ..

Janua,ry2, 1888.)

,

,Th,e filed a claim against defendant company for damages. The evidence ,w,!ijl J;lQt. suffici,ently certain as to the extent of the damage. Held. that, should have made his case iLudthe extent of his damagereaf(in&blycertain by proof. hisex'ceptioris to tlie master's findings agaipsthis ,claim should beoverroled, and the master's report confirmed.

OFDA.:MA.GE8-ExCEPTIONB.

IReported'l:>ffiililes B. 'Stafrord, Esq., of the New Orleans bar.
'".. "" ..... . .,.;"'0, ...

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.'

IN

RE MOY CHEE KEE.

377

In Equity. On exceptions to master's report. A claim was filed by E. L. Dehoney against the receivers of the Texas & Pacific Railway Company for damages caused by the burning meadow by fire ignited by a locomotive of the railway in passing.. The daim was for $2 an acre damage to the ·meadow, and' $40 for 4 acres of millet destroyed. The master allowed the claimant the $40 damage to the millet, but nothing for general damages. The claimant excepted to the master's report. Foster & WilBon, for claimant. W. W. Howe, for receivers. PARDEE, J., (Mally.) The evidence in this case is not sufficiently certain as to the extent of damage by fire to the meadow which was bUrned ()ver. The meadow had been mown, and the grass was dried out by the weather. A fire was likely to do no injury except by kindling the roots of the grass. The evidence shows that after the fire the grass did not <lome up in spots. How extensive the spots were, and failure in such .spots was on account of the fire or the drouth, does not appear with any such certainty as to furnish the basis for the master or court to assess the damage. The complainant should have made his case and the extent of his damage reasonably certain by proof. The exceptions will be overruled and the master's report confirmed.

In re.Moy CHEE KEE et al.

(CircUit Court, N. D. California. 1887.).

1.

COBTS-:::IN

IIABEAS CORPUS PROCEEDINa-,-REV. ST. U. S. § 828. . .t\n for a writ of· habeas CorPUB is a proceeding Bui generiB, and the provisions of Rev. St. U. S. § 828, regulating the fees of clerks of the circuit and district courts, do not govern in the t.axationof costs in such proceedings. , . . .

2.

SAME-DISCRETION OF COURT.

The court'. in its discretion, may fix a reasonable fee to be paid by the petitioner in habea, CorPUB cases, which fees, when collected, are to be accounted for as in ordinary cases.

On Writ of Habea8 Corpus. Application to tax costs. Th08. D. Riordan and L. I. Mowry, for petitioners. John T. Carey, U. S. Atty., for the United States. Before SAWYER, Circuit Judge, and SABIN, District Judge. SAWYER, J., (SABIN,J., concurring.) The petitioner is a. subject of Chins, of the Mongolian race, who, on arriving at the port of San Francisco, on the steam-ship City of Sidney, from China, inSeptember, 1887 ,claimed a right to land under the treaty and laws of the United States. The colwrit o(hah.eas lector having refused to pel'lllithim to land, he sued