BEARD V. ROTH. ' :
397;
But can. tile plaintiff recover for h,is counsel and other expenditures .in theattaehnwnt suit? This question, under the decisions of thesupreme court of the United States, must, I think, be answered negatively. Arcambelv. Wiseman, 3 Dall. 306; The Nuestra Senora De Regia, 17 Wall. 29. In a suit on an injunction bond, which bears a close analogy to the present action, that court held that counsel fees expended in getting. rid of the injunction were not allowable as part of the damages. Oelrichs v. Spain, supra. Itis to be observed that the statutory recognizance is not the foundation of the rightof action for the wrongful attachment ofstock. It is intended as a security for the payment of damages. The condition thereof is for the payment of" such damages as the court may adjudge." This, I apprehend, means such damages as are-legally recoverable. Now, in an action against the marshal for an illegal levy on teas, it was,held by, Judge BALDWIN that the plaintiff was not entitled to reoovermoneypaid: counsel, or other expenses incurred in prosecuting ,the suit. !wmranc8 Co.v. Oonard, Baldw. 138. And 'updnthis question ,the decisions,of the supreme court of Peimsylvania are in harmony with those of thafedJ.; eral courts. Good v.Mylin, 8Pa. St. 51; Haverstick v. Gas Ca.,29 Pa': St. 254; Stappv. Smith, 71Pa. St. 285. These cases hold that the plain..; tiff,whether suing in tort or contract, cannot recover in damages for counselfees or other expenses (not taxable us oosts) paid or incurred: in cstablishin; his right. t . And now,to-wit, March 31,1888, upon the facts found, and in ancewith the views expressed in the foregoing opinion, the court finds in favor of the plaintiff, and that as and for his damages he recover,of the defendant the sum of $1,201.65.
BEARD
et al. v.
ROTH.
(Circuit (Jourt E. D. Arkan8a8. June 11, 1888.)
1.
EXECUTORS AND ADMINISTRATORS-SETTLEMENT AND -AFTEB DEATH OF DEFENDANT-COLLATERAL ATTACK.
,.
..,
Where the accounts of an administrator are settled and filed in court, in his life,time, sho1Ving a balance due· the estate, the court ther,abY quires personal jurisdiction, and a judgment renger:ed after his death. con:firming the report and directing payment of the sum in his hands, is not void when attacked collaterally in a suit against the suret,y on the administrator!ll bond, though the judgment might have been reversed on appeal. ,. . Only creditors and distributees can maintain an.action agamst the' suteties of' a former administrator for money or property of the estate lost. wasted; or converted by him; so in suchan action the sUrety cannot plead itlb.ara former suit and recovery against him for the .same cause of actloL by the a(iministrator de bonis non, who sued without plaintiffs' consent, and' did not account to them for the money recovered. 8. SAME-LIABILITY OF SURETy-PRESUMPTION.: , . , AGAINST SURETY-JUDGMENT-RESADJUDICATA. ".'
Where the surety on an admini,etrator's bond is discharged, and a new; b.ond given, the suretyis not liable for moneys' found due the estate 'on Ii. settle'· ment of the administrator'saecounts made ,thereafter, where it is not:llhowli
39S ,the upon proof that the charge, where it also discharge; a.nd su9'- breach will not recemid funds befDre the disafterwards paid out a 1Jl.uch larger sum.
At Law. Action on anadministrator'a bond against the surety as surviving obligor.' J. M. &- J.. G; Taylor and W. S. McCain, for plaintiffs. W. H. Harriaon and (John· &- Oohn, for defendant. ill
.,CAT,DWELL, J. On the 9th dll-yof February, 1875, J. F. Vaughn executtld his bond for the administration of the estate of S·. W. McCreary. with John R9th, the defendant, aaone of his sureties. On the 11th of October, 1876, Roth made application to the probate court to be relea."ed as such surety, and the court IO/l.de,an order requiring Vaughn to give a newholld, and 'On the 30th of October, 1876, Vaughn gave a new bond to the approval of the Qourt, nn(l-Roth was discharged. At the July term, 1877, of the probate pour,t, Vaughn filed his first settlement as administrator. Exceptions were.tiled to this settlement, and thereupon the administrator filed a new settlement, which was also excepted to, and retarred by th.6 court to a master, who filed his report thereon May 8,;1878. The master's report fixed the. balance in the hands of the administrator at the date of filing ,the settlement at $2,266.25. Vaughn died in December, 1879. 'On the 23d day of April, 1880, the master's report was confirmed by th,6 court. In July, 1886, J. M. Taylor was appointed administrator of Vaughn's estate, and ordered to pay to the :plaintiffs, as. cJ:editors of McCrear;y's estate, the sum of $2,266.25 adjudged to be in Vaughn's hands as administrator of McCreary's estate. Taylor did not pay, and thereupon this suit was brought against the defendant on Vaughn's first bond as administrator. 'fhe breaches assigned are that Vaughn converted to his own use the $2,266.25, and that his administrator refused to pay that sum to the plaintiffs, as he was required to do by the order of the, probate court. Numerous defenses arc set up; among them, that the judgment of the county court fixing the amount due from Vaughn on his settlement was rendered after his death; but the judgment is. noL void for that reason. 'The court had'exohisive' original Jurisdiction of the subject-matter, ahd ,had acquired jurisdiction of person in life-time.. It is probable that the judgment of the county court, rendered after his death, Ulight have been reversed on appealibut it is not void, and is not open ,to collateral attack. Yaple v. Titua, 41 Pa. St. 202; Reid v. Holmea, 127 Mass. 326; Hayeav.Shaw, 20 Mimi. 405, (Gil. 355.) ttdministratdr' de bonia l1on, ofMcCreary's estate sued the defendant"as surety of for the same cause ofactiori set up in the complaint in this' case, and recovered a judgment against the defendant, -which he the' deteIld,ant pleads this as a former, recovery in har of this suit. 'But it is the, settled law in this state that an administrntor de bonia non has no right to sue the representatives or sureties of a former admipistrator for money or property of his intestate ]ost, wasted, or conv.erWd bY, him; and that only creditors and legatees ordistrjbutees
, BEARD t1. ROTH. "
899
ca:nmaintain such' action. Oliver v. ROtta'ken, 34 Ark. 144 j .F'inn v. Hempstead, 24 .Ark. 117; Wt71iamB v. Cubbage, 36 Ark. 307. If the suit of the administrator de bOJl.i8 non had been brought by the advice and direction of the plaintiffs, or if the plaintiffs had received the fruits of that suit, they would be estoppedj but they are not bound by a recO\1ery by one who had no interest in the fund, and no right to sue for it, and who proceeded without their knowledge and consent; and did not account to them for the money wrongfully recovered by him. ' As a further defense the ,defendant relies on his discharge as surety. The complaint does not allege a breach of the bond prior to the defendant's discharge, and by the strict rule of pleadingcthis would be fatal to the plaintiff's case <In any state, of the proofs. But if the plaintiffs -had proved a good case, the courtwould direct that the complaint be amended to correspond with the proof. ,The evidence, however, falls short of establishing a cause of action in the very respect the complaint does in stating one. Up to the "time the defendant was discharged as Burety, 'Vaughn is not shown to have misappropriated any oithe assets of the estate. His first settlement was not filed until July, 1877" nearlY' a year after the defendant's dischargej and this settlement was not finally adjusted by the court until 1880j and the order to pay over to the creditors, which was essential to render Vaughn and his sureties liable to the suit of the creditors, (George v. ElmB, 46 Ark. 260; State v. Roth, 47 Ark. 222, 1 S. W. Rep. 98,) was not made until 1886,-ten xears after the defendant's disehatge, and six 'years after Vaughn's death. 11t is proved that at the date of the defendant's discharge Vaughn had money of the estate in his hands to the amount of $612.75; bl1t there is no evidence that he had at that time converted this money to his own use. On the contrary, the proof shows that after that date he paid out on estate, and for expenses ofadmiJ;1istration, largely' more than thisamountj ,and· by analogy to the rule. for the application payments these disbllrsements must be held to have been made out offunds longest in his hands, or, what is the' same thing, must be applied to the payment' of the' earliest items of debit· against him. No {ao,t is shown to vary this . in,its application to this ,case. Ina well settled that it will "be presumed that the administrator performed his duty until the contrary is proved; and to render a discharged security liable it must' be alleged and proved that before his discharge the administrator had misappropriated the assets of the estate. In the absence of such proof the sureties ,in the new bond me alone liable. PhiJlip8 v. Brazeal, 14 Ala. 746; McKimv. Bartlett, 129'Mass. 226j State Stroop, Ark. 328. The statute declares the discharged surety "shall only be liable for such , misconduct as happened prior to giving the new Qond." Simply baving in ,his possession money or other assets at the time of giving the new Dond is not "misconduct.'" The object of the new bond is to secure the ,assetsofthe estate, theretofore received by theadministratQr; as weU.as 9Jlthatshrill thereafter ootrie into his hlinds; and such is ,its condition. Sureties on official bonds are only liable for defaulUiconimitted after the commencement of the term office tor whichtheybecameiel:lponeible;
,400 but that rUle has no application to this case. There are no terms in the ;office of an administrator; it is a. continuous employment from the commencement until the olose of the, administration. When he gives a new .bond there is no.new commitment of the estate to his hands, nor is there any settlement of, or rest made, in his accounts. There is no occasion for such action, because the new bond covers the whole liability of the administrator to the estate, whether incurred before or after its execution. Scofield v. (Jhurchill, 72 N.Y. 565; Morris v. Morris, 9 Heisk. 814; .Ohoate v. Arrington, 116 Mass. 552; Pinkstaff v. State, 59 Ill. 148. In Morris v.Morris, 8upra, it is held that the sureties in the new bond are ,primarily liable for the whole amount for which the administrator ought to account.. This doctrine. would imply that. the last bond should be :exhausted before resort could be . had. ,to the first for any defalcation that occurred before the sureties on it,were discharged. But see State v. Berning, 74 Mo. 87 ; Pinkataf! v·. State, 59 Ill. 148; Ohoate v.Amng0a, Mass. 552. How.ever:this may be, it is certain the 'discharged sureties are not liable except "for, such misconduct as happened prior to giving the new bond," and no misconduct is, shown in this case.
MORRISON,
'lJ.'
{three cases.)
(
,
(Circuit, Co·urt"J).:1{ew.Jmey. May2S,1888.) . .
..
The clerk of the United States circuit court of New Jersey is entitled to collect from plaintiff, in an action 6t law, fees for the proceedings and judgments therein jn favor of pHtintiff, as Rev. ·St. U. S. § 914 provides that '. 'the pleadings and forms and modes of proceedings In civil causes other.than equity and admiralty in the circuit and district courts 'of the United States " s,hall conform JilearJ.y &smay .be to the forms and modes of procedure in like oa.uses in the states where such courts are held, and the practice act of N. if. § 76 provides 'that When any ciVil action shltl! have been determined, the clerk of the court shall enter all theproceedingll, including the judgment, in a, bopk ohecords to bekepUor that purpose. '
,STaTES CIRCUIT COURT-FEES-RECORDING PROCEEDINGS AND JUDGMENTS.' .
.. ' ,.' ': .:; C';.·:: " , "
"'»)fiAt,Law',' On stipulation ,as to costs. ,Plaintiff' having recovered. three judgments against defendant, a ques,.non arose concerning theclerkJs fees, when theJollowing stipulation was dmtered into, referring the matter to the court: :,' "''' Question bei rig Diadew bether the fees charged for entering the judgments dn!tbese cases, respectively, tis above stated; were laWfully to be taxed against ,tl:}edtlfend1l,nts .and tobe.pa'id,.in <Hlfanlt of their payment by the plaintiff ,qnesti,o.. . jgl;1e.rllb.Y SUblIlitte.. cl .. of.. the court. .Dated March 27, 1888..COR'fL"'NDT· & WAYNE PARKF.R, attorneys for plaintifIs. S. D· . -plerk;'etc."'" · .. . . ; ": ) ." :
N I:x:O:N I J ·.
MORRISON V. BERNARDS TOWNSHIP.
401
BRADLEY, Justice. The costs in a cause at law are those of the plaintiff and those of the defendant. Neither party has any concern with the costs of the other party until judgment. Then the successful party recovers his costs from the unsuccessful party, and they (orm part of the judgment. The costs of the unsucc.essful party uever appear in the ment. The clerk and other officers of the court collect their casto from the party for whom each item of service is done, and the amount forms part of such party's bill of costs. No judgment is entered in favor of the clerk for costs, except npon a rule against the party owill!;, costs to .him, which is a summary proceeding by itself, ending in an it is very easy to distinguish tIlP. costs of the plaintiff from those of the defendant. The cost of every act done by his attorney, of every:.paperfiled, and of every entry made in his h... half, IS chargeable him. If ·heobtains judgment against the deleuuant, the cost of en. tering such judgment, and the cost of enrolling the proceedings, where that is required to complete the process, are chargeable to the plaintiff, because these acts are done in his behalf, and by his actual o.r presumPr pVe request. If the enrolling 'of the proceedings in the present cases is :r.equired by law,the costs are part of the plaintiff's costs, primarily payable by him" but recoverable by him from the defendant as part of his jJ1dgment., Formerly it was not customary to enroll the pleadings and proceedings, either inactions at law Dr in equity, in the circuit court of States for this Jistrict, and the consequence has been that many records and acts oithe court ilfe irretrievably lost. The change of. clerks and' offices, and tl:re dangt'r to which loose files are in various ways expoSed, render tpeir preservation extremely precarious. In 1872 congress passed ana.ct, the fifth section of which now Jonstitutes section ,914 of the. Revised Statutes of the United States, which. declares that "the practice, pleadings, and forms and modes of proceeding in civil :causes;other than equity and admiralty causes, in the circuit and district courts, shall conform as near as may be to the pradice, pleadings, and .f.orms and mpdes of proceeding existing at the time in like causes in the .courts of record of the state within which such circuit or district courts are held·, any rule of court to the !Jontrary notwithstanding." If this ,act extends to the mode of entering and recording judgments, we shall then be oblige,d to see what the practice in New Jersey is with regard to thosematteI:s. Prima facie the act covers the case. The entry ofjudgment and moue of making it a record are parts of the form and mode of proceeding in a caUEe. The 917th section of the Revised Statutes gives to the supremo court a large control, by the adoption of rules, over the ,practicein sqits,in equity and admiralty, including the modes of enterdecrees, and the 918th section gives authority to the ing and ,circuit and district courts, where the st!ltutes and the rules of the supremo court donot apply, to m/;\ke r1,lles and orders directing the return of ,writs,thefiling of pleadings, ,the taking of rules, the entering and making up of judgments by detitQ,lt, and other maHers in vacation, and othermay be neGessaryorconvenient. wise regulating their B,\'!j 918 istakllnJrqm long previous to the act of . v.351'.no.6-26 . .
402
FEDERAL REPORTER.
1872, the latter, so far as it appliesj should be construed to overrule its provisions. The compilers of the Revision had a careless habit of inserting alllaws,old and new, however inconsistent with each other, in the Revision, so as sometimes to make an unintelligible tangle without attending to the relative age of the different acts from which they were taken. I think that section 914 governs the case. Then we are to seek the law of New Jersey on the subject of recording judgments. By the common-law practice formerly prevailing in the province and state, a judgment roll was made up, and filed in the clerk's fice of the court in which jUdgment,was rendered. But ever since the revision by Mr. Paterson, this practice has been discontinued, it being provided in the practice act compiled by him (section 76) that when any civil cause, of whatever nature it be, shall be finally determined, the clerk of the court shall enter the warrants of attorney, declaration, pleadings, proceedings, and. judgment insl1ch cause, (which constituted the contents of the old roll,) so as to make a complete record thereof in a separate book to be kept for that purpose. with a complete alphabetical index to the same. For this service the clerk was allowed one dollar, which was always charged to the party in whose favor the judgment was dered, and was tA,xed in his bill of costs, and recovered by him against the other party. This law has 'never been changed. See Revision N. J, tit. "Practice." § 192. But for the relief of the successful party, in case he should wish to avail himself of his judginent in any way in the court in which it was recovered; the Clegislatureof New Jersey in 1863 passed II supplement to the practice act (Id. § 194) providing that until the clerk shall enter the proceedings, as aforesaid, the verdict or rule for judgment in the minutes of the court shall be held and taken, in the 'Collrt in which the ,same is obtalrlEid, to be the record of the judgment in ·such cause; and shall be received in evidence in said court as such judgment, as fully as if the record had been made up and signed as by said sEietion (192) is required. This statute does not<lispense with themakmgof the record, nor prevent the successful party from including the cost of it in his bill of costs recoverable against the other pl1rt)' It only makes the minute entry of the proceedings and judgment effective as such for all purposes of executiol'l and evidence in the court itselffor the intervening period between the rendering of the judgment and the makmg up of the record. This was always the understanding of sion. I suppose the act was passed to remove all doubt on the subject. From this we take the law of New Jersey to be that the proceedings are not complete in a suit until the record is made up in the judgment bOok, and that it is the clerk's duty thus to make it up, and that the cost of making this record is chargeable to the successful party, and is recoverable by him against his It would hardly do to say that the successful party,may waive the entry ofthe record,and rely on the benefitof the law of 1863, l1lakinghis effecUve in the court in which it was rendered without its being recorded. If this were allowed, nothingbut irregularity and confusion would follow. If he should instruct the clerk not to record his contrary to the policy of the law,
'UNITED STATES V.
POUNDS OF RISING STAR TEA, ETC.
403
it might well be regarded as' an abandonment of the judgment, and as rendering it null and void,or liable to be declared so by the court. I am constrained to hold, therefore, that since the act of congress of 1872 it has heen the duty of the clerks of the United States circuit and district courts in New Jersey to provide judgment books for recording all judg. ments in suits at common law in the same manner as is done in the courts of the state,and that they are entitled to charge for such recording the fees allowed by the of the act of congress, and that the party chargeable with the expense thereof is the successful party in each suit in whose favor the judgment was rendered. My conclusion therefore is that the plaintiffs in the above cases are liable for the costs of recording the proceedings and judgments therein, and that the clerk is entitled to collect the eame accordingly. NIXON,
J., concurs.
UNITED E;TATE8 t7. FORTY-EIGHT POUNDS OJ' RI!"'NG STAR
TEA, ETa.
.Di,triet (JOUf't. No D. Oali[ornia. June 7. 1888.) MATH IN THE hmrAN COUNTRy-ABANDONED RESERVATION-KLARESERVATION. By act Congo April 8, 1864. the president was authorized to set Apart not exfour tracts of land in California for Indian reservatiolls, and in his discretIon to include therein existing reservations. The lands in existing reservations not thus r.etained were to be sold as therein prescribed. !<'our reservations were accordingly set apart, among which the previously existing Klamath reservation was not included; but possession of the latter, which contained about 40. square miles, and on which were about 200 Indians. was retained by the United Statelil. and SOme steps were taken towards its disposi· tion·. Held, that the Klamath reservation was not "Indian country" within the meaning of Rev. St. U. S. § 2133; prescribing the penalty for unlicensed trading in the Indian country. .
At Law. Seizure for violAtion of Rev. St. U. S. § 2133, providing that "any person other than an Indian who shall attempt to reside in the Indian country as a trader, or to intruduce goods or to trade therein without such license, shall forfeit all merchanJise offered for sale to the Indians ·ar found in his possession, and shall moreover be liable to a penalty of five hundred dollars." J. E. McElrath and D. T. Sullivan, for claimant. Joh'1l. T. CJarC!h for the United States. HOFFMAN,J. It is not denied that the claimant traued with the lridians residing on what has been known as the" Klamath River Reservation" in this state. The question, to be considered is, is the land so "Indian country" within the meaningofthe section referred to. The Klamath Indian reservation wascreated.by executive order, dated