M'KINISTRY fl. UNITED STATES.
211
and illegality in the issue of the bonds before laying the necessary dation to make the decree evidence as against those who were not parties to the suit. But, be this as it may,assuming for the purpose qf this decision that the burden is on the plaintiff to show that the 23 bonds alluded to that were not involved or traced in the former suit have passed through the hands of an innocent purchaser, the testimony, in my opinion, fairly shows such fact. The evidence contained in the printed record upon which this case was submitted, shows that the Missouri, Iowa & braska Railroad Company transferred the entire issue of bonds for value and before maturity to the Iowa Railroad Contracting Company; that the latter company bought without notice of the suit of Wagner v. Meety, and without notice of any infirmity of title, and it subsequently sold the whole issue in open market at about 80 cents on the dollar to various purchasers. Without any reference, therefore, to the question whether the testimony also shows that plaintiff bought with notice of the pending suit, or with notice that a part of the bonds had been put ill: circulation in violation of an injunction of the state court, it appears to me that the evidence establishes the fact without contradiction that before the bonds reached his (plaintiff's) hands, they had passed through the hands of an innocent purchaser, and that he is not precluded from recovering in this case by reason of any notice or information which he may have had .at the date of his purchase. The result is, in my opinion, that judgment should be entered as prayed for by the plaintiff; and it is . . accordingly so ordered.
McKINISTRY '11. UNITED STATEs.
(O-vreuit Oourt, S. D. Alabama. March 9,1888.)
1.
U!UTll'JD;STATEll CoMMISSIONERS-FEES-COMPLAINT IN CRIMINAL CASE.
A United ,States commissioner is not entitled to a fee· for drawing a complaint in a criminal prosecution, but, such complaint being sworn to and filed. he is entitled to the fee. viz., 10 cents, prescribed (Rev. St. U. S. 847, par. 1) for administering an oath, and to that, viz., 10 cents, for filing a paper in a cause U. S. § 847, {lar. 7, and § 828, par. 3.) Code Aill. §§ 4256, 4257, provides tbat in the preliminary examination of a criminal the. magistrate shall reduce to writing the testimony of tbecomplainant and of such witnesses as. he may offer in support of the charge. and styles such testimony a deposition; but the testimonr of each witness need only be "signed" by him, and is not required to be certIfied and filed, nor are same formalities observed in tl:teproceeding as are prescribed (Id. §§ 2807, 2808) in the taking of depositions. Held, that such an examination in the case of one charged with an offense against the United States, reduced to writin&, by a United States commissioner in Alabama, was not a "deposition" withm the meaninp; of Rev; St. U., S.§847, par. 9, prescribing a fee of 20 cents a folio "for taking and certifying depositions to file." Under Hev. St. U. S. § 847, par. 7, and § 828, par. 1-8, a commissioner· is entitled to 8 fee of one dollar for issuing. and 10 cents for :filing, a warrant, and 25 cents for .issuing a summons, and 10 cents for tiling it when returned
2.
SAME-REDUCING TESTIMONY TO WRITING.
8.
SAME-WARRANTS ·AND SUMMONS.
212 4.
FEDERAL REPORTER.
$llm-ENTERING RETURNS.
The entering by a commissioner of a return of a warrant or subprena issued by him, is not a like service as performed by clerks of the United States courts, within the meaning of Rev. St. U. S. § 847, par. 7; and he is not entitled to the compensation (15, cents per folio) provided for those officers by section 828, par. 8; the commissioner not being required by law or order of court to enter such returns, and he having no record on which to make such entries. When, by request of the accused, on the day of hearing, a continuance un· til the next day is granted, without other proceedings, the commissioner is not entitled to the per diem of five dollars. prescribed by Rev. St. U. S. § 847, par. 8, for the day of hearing.
5.
SAME-CONTINUANCE-PER DIEM.
6.
;aeis entitled under Rev. St. U. S. § 847, par. 7, and § 828, par. 8, to compen· sation,for drawing bail-bonds at rate of 15 cents for each folio, but not to , a fee foJ:' filing such bonds; section 1014 requiring the bonds to be returned to , the'court before which the accused is bound over to appear. SAMEl...AcKNOWLEDGMENT.
SAME-BAlL·BoNDS.
'1.
TIle provision in Rev. St. U. S. § 847, par. 2. allowing commissioners 25 centsfQr"taking an acknowledgment" does not apply to acknowledgments talten by such officers to bail·bonds. , The law o'f Alabama requiring the magistrate conducting a preliminary examination to justify persons offered as bail, a commissioner in that state, when admitting a person charged with an offense against the United States to bail, is entitled to a fee of 10 cents for each surety to whom he administers an oath.' Rev. St. U. S. 847, par. 1. TO SURETIES.
9.
SAME-WITNESSES.
He is entitled to compensation for administering oaths to witnesses as to mileage and attendance at the rate of 10 cents for each witness, (Rev. S. § 847, par. 1,) and for each certificate or order issued to a witness for St. his pay at the rate of 15 cents a folio, (Rev. St. U. S. § 847, par. 7, and § 828, par. 8.)
n.
10. SAME-DOCKET ENTRIES.
Rev. St. U. S. § 828, par. 8, provides compensation for clerks "for entering any return, rule, order, continuance, judgment. decree. or recognizance, * * * for each folio, 15 cents." Section l:l41, after specifying certain fees to be paid commissioners for particular services therein mentioned, provides (paragraph 7) that "for any other service, such compensation as is allowed to clerks for like services." Held, that "any other service" meant "service" reo quired of commissioners by law or by order of court, and that, commissioners not being required by law or order of court to enter on their dockets any of the item,sspecifically mentioned in paragraph 8, Ii 828, they were not entitled to compenllation for such entries.
11.
SAME-TRANSCRIPT:
Where the order of courtrequires commissioners to forward to the clerk a transcript of the proceedings in each case examined by them. they are enti, tIed to be paid for a copy of the proceedings as entered on their docket at rate of 10 cents a folio,and for the certitlcate annexed thereto at the rate of 15 cents a folio. Rev. St. U: S. Ii 847, par. 7, and $1828, pars. 8,9. They are entitled under the same sections, and order of court, to compensation for a monthly report in duplicate of all cases instituted or examined before them, at the rate of 15 cents a folio.
SAME-][ONTHLY
t8.
SAME-COPIES OF PROCESS. They are entitled to 10 cents
a folio for copies of the "process" returned by them into the clerk's office of the court. as reqUired by Rev. St. § 1014. providing. for the arrest and removal for trial of offenders against the United States; "process," however. sig-nifyingonly the warrant or writ by which the 8ccusedwas brought to answer the charp;e preferred against him. Rev. St. $I 847, par. 7, and § 828, par. 9.
M'KINISTRY '/J. UNITED STATES.
213
At Law. Action by William D. McKinistry, a United States commissioner, for fees disallowed by the first comptroller of the treasury de. partment. G. L. & H. T. Smith, for plaintiff. J. D. Burnett, Dist. Atty., for the United States. TOULMIN, J. The plaintiff is a United States commissioner for the Southern district of Alabama, and brings this suit to recover a balance of services rendered by him as such claimed to be due him on commissioner for and on behalf of the United States. The accounts sued on run from February 10, 1887, to September 30, 1887, inclusive, and originally amounted to $1,823.45. They were sworn to, duly presented to and approved by the proper court, and transmitted to the first comptroller of the treasury department for payment. The sum of $666.46 was allowed and paid on these accounts, but the balance claimed was disallowed and payment thereof refused. The entire account is before the court, and the complaint alleges that the services therein charged for were actually and necessarily rendered, and the charges made therefor are just and according to law. The United States, by the district at. torney, interposes a general denial of the allegations of the complaint. The plaintiff submits as evidence in support of his complaint his own testimony; all the papers in the several cases specifically mentioned in the petition, and in which the services charged for are claimed to have been rendered; his accounts as set out in the petition, and the orders of court allowing them; the order of the court requiring dockets to be kept, and his doyket. Officers who are entitled to receive fees for their services can receive only such fees as are specifically prescribed by law. The statutes of the United States prescribe the services for which commissioners are entitled to receive fees, and prescribe the fees that shall be charged. Rev. St. §§ 823, 828, 847, 1764, 1765. Unless we find in the statutes authority for the fees charged in the accounts sued on, they cannot be allowed. Jcrrnan v. Stewart, 12 Fed. Rt:p. 271,275; Rev. St. §§ 823,1764,1765. There is no authority found in the statutes for the charge for a complaint. Neither section 828 nor section 847 ptescribe a fee for drawing a complaint in a criminal prosecution, nor for any like service. But. as a complaint is sworn to and filed, I think the petitioner is entitled to the fee prescribed for administering an oath, and for filing a paper in a cause. While it was admitted in the argument by plaintiff's counsel that there is no fee allowed for the complaint eo nomine, it was urged that he should be allowed compensation for taking depositions at the rate of 20 cents a folio, under section 847, Rev. St., inasmuch as he is required, in the preliminary examination of a criminal charge to reduce to writing the testimony of the complainant, and of such witnesses as he may propose in support of his complaint. The Criminal Code of this State requires this, and calls such testimony "deposition." Code of Ala. vol.'2, §§ 4256, 4257. But it does not require such testimony to be
FEDERAL' BEPOR'rEB.
certified· and filed by the magistrate. ; Nor'does it require such testimony to 'be taken with the same.. formalities as is required by the statute in the taking of depositions. 1 Code Ala. §§ 2807,2808. The Criminal Code only requires that the testimony shall be signed by the witness. 2 COOtl Ala. §§ 4256, 4286. That such examination, reduced to writing by the commissioner, is not a deposition in contemplation of section 847, Rev. St;U.S., which prescribes;'afee fortakiog.and certifying depositions to.fUe" see Nail Factory v. Cdrning, 7 Blatchf. 16; and also opinion in the. caie: of Strong v. U. S., in the district court for the Southern district of Alabama, filed February 21, 1888, (see ante, 17.)' But I find as a; matter of fact in this case that the testimony of the witnesses examined :on the preliminary hearing in the cases mentioned in the petition not certified by the plaintiff as commissioner, and was oot formally' filed by him, and there is in fact no charge for taking and certifying depositions in the accounts sued on. The plaintiff is entitled to a fee for issuing and filing a warrant, and for issuing and filing a 8ubprena, when duly returned. He is not entitled to a fee for entering return. of warrant or subpoona. Sec.. tion847 does not. provide for any such fee. He is not required by law or by the order of this court to enter such returil, and he has in fact no record on which to enter it. So he cannot claim compensation for it on the ground of a like service performed by clerks of the United States courts.' Section 828, RevAit., providescomp"losation for clerks for en.. tering return. They have records on which to make such entry, and it is their duty to make it.. The petitioner did, as a general thing, enter on his docket the return of the warrants and su bprenas in the cases exam.. ined:by him. But the order of the court, which requires commissioners to keep a docket, does not prescribe among the entries required by it to be ,made on the docket the entry of return of warrants andsubprenas. It does require specifically certain entries to be made, bnt,omits the return of warrants and subpamas. There being, then, no law or order of court. requiring such service, and no fee provided for a service not necessary or required to be performed, the charge here made cannot be sustained.: . No per diem fee is chargeable for a day when there is neither hearing nor deciding on a criminal charge,as when by request of the defendant aoontinuance is granted without .other proceedings. Rev· St. § 847. In the Case of Thomas H. Boyles (being the second case mentioned in the account sued on) there is a per diem charge of $10. I find from the evidence that there was but Ol1'C day employed in heul'ing;and deciding the charge. On the first day there was a continuance :merely by request of the defendant. The petitioner is entitled to but one per diem fee in that case. Petitioner, as ,the proofshows, is entitled to fees for only 324 oaths examined oo'the:hearing. Bdtthis of oaths administered to witnesses as to their m'ileagE1and attendance. The petitioner is, entitled to compensation ,ror drawin!1; bonds at the rate of 15 cents a folio. . The bonds submitted' in evidence contain four
U'KINISTRY 'V. UNITED STATES.
215
folios each. There is no oath to them, and rlOneisrequired by law, and they are not required to be filed by the commissioner; but the law requires that they shall be returned to the court before which the defendant is bound to appear. 2 Code Ala. § 4425; Rev. St. § 1014. Petitioner is therefore not entitled to a fee for oath to and filing of bonds. The charge for acknowledgment to bonds is unauthorized by law. There is no such thing as taking an acknowledgment to a bond required by law, and the proof fails to show that there were any legal acknowledgments taken to the bonds in evidence. Section 847" Rev. St., provides a fee for taking acknowledgments, bnt in my opinion this has no reference to a bail-bond, and' applies only to an act having reference to conveyancing. See opinion in Strong v. U. S., supra, and authorities therein cited. The statute of thIS state authorizes the magistrate to justify or qualify the persons offered as bail. In such case an oath is required. and for administering .each oath the petitioner is en.titled to a fee of 10 cents. ' . . I find from the petitioner is entitled to compensation for administering oaths to 195 witnesses as to their mileage and attendance at 10 cents each, and for as many certificates or orders issued to, said witnesses for their pay at 15 cents a folio.. The certificate or order which is desigUllted "pay-roll" for each witness by the commissioner contains less than two folios. The pe.titioner is, not .entitled to the docket fees charged. 24 U. S. St. at Large, 274; opinion in Strong v. U. S., 8upra. Tbere is no law whichallbws fees for docket entries. Section 828, St., provides compensation fQr<Mrks "for entering any return, rule, order, continuance, judgmel'It,decree; or recognizance, * * * for each folipfifteen cents." And section 847, after specifying certain fees to he paid commissioners for pl:!-rticular services therein mentioned, provides that "for any other service, such compensation asjs allowed to clerks for like services." This of course means "for any other service" required of commissioners by law 011 by the order of court. At:ld they are not required by law or by the order of court to enter on theii' dockets any of the itomsspedfically melltioned in that dause oft;lection 828 above quoted. I have always considered that compensation for such docket entries as were requireq to be made :was covered by the docket fee formerly allowed commissioners. AB they are not now entitled to docket fees, there is no compensation provided for entries. Since the order of the court requires commissioners to forwarq to the clerk of the court a transcript of the prOCeedings in each case e:ll:amiued by them, I think they are,entitled to be paid for a copy of the proceedings as entered on their docket at the rat.e of 10 cents a folio, and for the certificate annexed thereto 15 cents a folio. Rev. St. §§ .828, 847. PetitionelLis allowed this compensation, but in four cases set out in the petition there are no certificates to the copy of proceedings. In these cases he eannot,recover compensation for certificate. for a. monthly report induI hold that he is entitled to plicate of all cases instituted or examined before him during the month at 15 ..cents a folio. Id. He is required by order of the court to make
216
this report in duplicate. But he is not entitled to be paid the fees charged for report in internal revenue cases, because no such cases were instituted or examined to be reported as required by said order. I also find that petitioner is entitled to the fees for copies of the process returned by him into the clerk's office of the court, as required by section 1014 Rev. St. The charges for copies of process are allowed only as to copies of the warrants so returned. Process signifies warrant, or the writ by which the defendant· is brought to answer the charge preferred against him. No charge for copies of other papers is allowed. Judgment will be entered for the plaintiff for $226.59.
SEIBERT CYLINDER OiL-Cup
Co. v.
DETROIT LUBRICATOR CO.
(Oircuit Oourt, E. D.Michigan. February 14, 1888.)
PATENTS "FOn INVENTIONS-WHO ARE INFRINGERS-LICENSEES.
A contract whereby complainant agrees not to sue defendant for any future of its, p,atent" in consideration of· defendant's accounting for machines, manufactured and paying a royalty thereon, Is in substance and el· feet a license, and complainant cann'ot treat defendant as an infringer by reason of Its refusal tei account and pay royalties.
complainant hadcllDsented that a third party enter upon the manufacture of its machines, in competition with its own licensee. to whom it had certain exclusive rights, and Buch competition had resulted in It. large reduction in the price of the machine. held, that whether such a copsent was a technical.violation of its contract with the licensee or not. complainant. was not entitled to a preliminary injunction. (8yllalYuB by tAe Oourt.)
SAlUIl-LICENSE-BREACH OF
In On motion for a preliminary injunction. This was a hill to recover damages for an infringement of letters pat-. ent No. 138,243,issued April 29, 1873, to John Gates, for an improvement in lubricators. The bill contained the usual allegations of the issuance of the patent, its asSignment to, plaintiff, proceedings in various. suits, in which the validity of the patent was several times adjudicated, and the infringement by the defendant, against which an injunction was prayed. The bill then proceeded t08et forth (paragraph 9) that the defendant wrongfully pretended that it had a right to make" use, and sell thesaid invention 1'.y reason of a contract between the plaintiffand defendant, made on the 1st of December, 1883, in which it was agreed that neither party should sue the other under any or the patents now or hereafter owned by' them; but in answer to this it was averred that this agree-ment had been rescinded, and that such rescission was caused by the wrongful act and default of the defendant in failing to make certain turns and pay certain royalties stipulated therein, and for such neglect and refusal,and because of the repudiation by the defendant of the agreement, the plaintiff had elected to rescind it, and that the infringement.