ARNOLD !1. CHESEBROUGH.
:571
or abandoned, and not to be too early or too late in filing their statements, It is also apparent that there IIlaya.rise perplexing questions as to when a work is completed, or abandoned, and, in determining such questions) ithe court should not take. a technical and narrow view, but should save to parties entitled to liens any rights they may justly hl;Lve, under afair and equitable, construction of the facts and the law applicable thereto. The demurrer must be overruled.
ARNOLD
et al.
V. CHESEBROUGH. 1
((]irc'Uit Oourl. B. D. NetD York. .PLJU,DINa-;-A!mNDMENT-CONDITIONS.
December 18, 1887.)
When,it does not. appear that plaintilf's situation has changed for.the worse in consequence of defendan.t's delay in interposing .11. particular defense,-unless in proceeding to make proof of his case, whiCh he might not have done had the defense been interposed originally,-a motion to amend the answer will be granted, but on payment of taxable costs to the time of the amendment.
In Equity. On motion to amend answer. Henry A. Rawcliffe, (John H. V. Arnold, of counsel,) for complainants. Blisa &: Schley, (Walter S. Logan, of counsel,) for defendant. LACoMBE,J. The practice formerly prevailing in this state of examining into the meritoriousness or morality Of defenses sought to be interposed by way of amendment to"the answer is no longer valid. GUchri.8t v. Gilchri.8t, 44 How. Pro 317;8heldon V. Adams, 41 Barb. 54; Pike v. Bingham. 11 Reporter 750. When law or equity recognizes a defense as proper to be interposed to the plaintiffs' claim, it should· be treated upon a motion of this kind as entitled to the same consideration as any other defense. There is nothing upon the papers to show that plaintiffs' situation has changed for· the worse in consequence of defendant's delay in interRosing this defense. nor that, by reason of the lapse of time, she has lost the opportunity of presenting evidence to defeat the proposed defense which she have secured had it been interposed when issue was joined. Nor does it appear that the final disposition of the case will be in any way delayed by the interposition of the defense at this stage of the trial. The plaintiff, however, has proceeded at great length to make proof of her case, which possibly she might not have done had this defense been interposed originally. The defendant's motion is therefore granted, upon payment of taxable cost to date, including the fees of ex.aminers and stenographers, if any. . J:Beport.ed by J!;dwara G. Benedict., Esq., of t.he New York bar.
572
FEDERAL REPORTER.
UNITED STATES V. BADEAU'.
{Di8trict (Jourt, 8. D. N6'IJJ York. December 20, 1886.) 1.PLEADING-AMENDMENT-CHANGE OF ACTION-AcCOUNT-AcCOUNT STATED.
Where suit is brought upon along account claiming a final balance, an amendment will not be allowed at the close of the trial changing the co'mplaint into a claim upon an account stated at a time near the end of the account. for the purpose of excludiug corrections of Qllarterlv adjustments, which iustice may require to be made. . FEES -WHEN "OFFICIAL" . PAYMENT UNDER
2.
AMBASSADORS AND CONSULS MISTAKE.
The defendant. lI. consul, was sued for balance of alleged consular fees claimed to belong to tb,e government, and. he proved. that he had always retained in his hands a sum in excess of the amount claimed, although this amount had in early accounts been credited to the treasury department, and it appeared that the moneys were not in fact official fees. but legally belonged to the consul.' Held, that the facts did not show a voluntary pllyment to the government of the fees in question; so as to preclude the defendant from resisting a recovery of the amount erroneously returned in his former accounts; and further, that the ruling of the state department, and ,the tabular list of fees promulgated by the president, apparently including the fees in question, until a revision and different ruling by the state department, made the case one of an accounting under a mistake of mixed law and fact, and were not con· clusive upon the defendant. 8. SAME-E'EES-:-PERBONAL PERQUISITES.
The sections of the Revised Statutes in relation to consular acts abroad, consular fees, and the regulations authorized to be issued by the president. ate limited to those subjects which belong to the business, the interests, and the jurisdiction of the United States. Fees re.ceived by the consul, acting under state authority, and wholly independent of tb,e authority of the United States government, are not official fees as respects the federal government, but the private property of the consul, which he may, retain for his own use, and for which he is not required to account t,o the government.
Action by the United States upon the official bond of Adam Badeau, consul. This is an action upon an official bond, to recover of the defendant $10,572.64, balance alleged to be due the government on the accounts oIthe defendant as consul general at London, from July, 1870, to September, 1881. The only matter in controversy related to certain fees which had been collected by'the defendant for taking the acknowledgment of deedS, mortgages, assignnients, powers of attorney, affidavits, etc., while consul at London, which the defendant claimed were unofficial fees, belonging to him personally.. In his quarterly accounts rendered tothe treasury deparhnent from July, 1870, to September, 1875, the defendant had credited all such fees to the government. In consequence of a ruling made in the department of state ahout that time, to the effect that fees in the nature of notarial acts, not connected with the business of the government, were "unofficial," and might be retained as such by consular officers, the defendant omitted from quarterly accounts thereafter all such fees for services performed under authority of state laws, making return, however', for affidavits, etc., taken in the business of the