(Dl8trict Court, N. D. Iowa, E. D. March 6, 1890.) 1. CLERX 011' PAPERS IN 'CRJ;HINAL CASES. ., . Under the statut!'! (if the,United States giving a fee of 10 centll for filing and en·' tering every declaration, plea, or. other paper, the clerk is entitled to that fee every material paper properly sent up by a commissionEll:'ill a, criminal case, and IS not required to bujl(\le together, andflle as one, all the papers except the final recognizance. 9.. SAJotE-FILING APPOINTMENTS or DEPUU·MARSJULS AND REOO'RDING .OnRS. It being the clerk's duty to file the appointments of deputy-marshals, and record their oaths of office, he is entitled to receive the fee therefor from the government, whether Or not the government can reimburse itself from t4e S. or IWDIOTME:lJTS IN OTHER THAN CAPITAL CASES. Under Const. U. S. amend. 6, entitling the accused "to be int'ormed of the nature and cause of the accusation," he is entitled to a copy of th,e indictment, though Rev.St. U. S. § 1033,. proy-ides furnishing such copy only ill cases; and the 'clerk is accordingly entitled to pay for preparing tlie copy.' .,' SAME-ENTRIES ONJAOll'ETS.
"Fees entries on t4e Jackets in which the papers are inclosed, showing the date of disposition of the oases, and the pages of the record where the proceedings will ,be found, are covered by the general cliarges for indeXing.' . , · ' , , .
.
·.
5,
SA:u:E-"ENTBY OF RETURN OF, GRAlQl JURY.
For entJ;'y of the return of a granu jury, the clerk is entitled only to the statutory folio f e e s . ' " ' : .. i
6. SAME-'-DOOUT FEES-CASES IGNORED BY CoMMISSIONER.
't
The plerk is entitled to the fee "for making dockets, taxing costs, and other services in a cause which is dismissed or discontinued, "in cases brought before a commissioner where the' defendant was held to appear, though the grand jury ignored the case, ,and it was therefore dismissed. ' SAJotE-AUTHENTIOATIWG ORDER 1"0R PAYMENT or JURORS' AND WITNESSES'FEES. . Orders for the payment of witnesses' and' jurors bY the marshal should be authentioated bf the signature ,of the clerk, with the sealattaclied, and the clerkia therefore entItled to chal'ges for affixing seal.
8. SAME-ENTERING ORDER FOR TRIAL-REOOlt1>ING VERDICT. The fee allowed "for making dockets, indexes, vErn:WelI, taxing coats. and all other ,services on the trial or argument of a cause, does not inolude entering
the order for trial, and recording the verdict.
9. SAJotB-FILING I'REOIPESPOR BENOH-WARRANTS. TIie·clerk is entitled to fee. for filing prmclPeB for bench-warrants by the dIstrict
10. S4ME-FINAL REOORD IN' .CRIMINAL CASES.
Under a rnle of cou,rt providing, in th,e absence of stst,utory, provisions, tha,t in criminal cases the final record shall include the order made ]:)y the commissioner binding the defendant to appear before the grand jUry, the clerk is entitled to pay for entering the return of the commissloner in the final record; and it cannot be 'contended that there is no case in court until indictm,ent found. Where a case is removed from one division of the district to another, the clerk cann()t recover the fee allowed for "services in a cause which is dismissed or discontinued. " OF SUBPCENAS.
11. 19.
BAMl!:-FEE 1I0R DISOONTINUANOE-REMOVAL TO OTHE·BDIVISION.
Though Rev. St. U. S. §829, fixing the marshal's for service of subpcenBll forbids him to make a further charge for copy, the clerk being required by rule of court to make copies to be left With the witnesses, is entitled to recover pay there tOt.
At Law. Petition to recover for services 'Bsclerkof courts. A. J. 'Van DtLzee, pr08e. 'P.'P.Murphy, U.S. 'Dist..Atty. , for Jefendant.
571
J'lmEBAL REPQBTEl\,
vol. 41.
SHIRAS, J. The question presented by the demurrer to the petition right of plaintiff to recover for certain servfiled in this cause is as ices rendered by him as clerk of the United States courts in the northern district of Iowa. . The first division of account sued on includes the fees charged in 45 for filing the papers certified up by the commissioners before whom the cuseS were commenced. In the majority of the cases, the nutnber of papers filed by the clerk ranges from 4 to 6. A few number 8 papers, and one _reaches 16. In the whole number, of 45 cases, there werefilec;l 267 papers, or an average of 5 14-15 to each case. It is admitted by defendant that for each paper properly filed the clerk is entitled to a fee of 10 cents; and the question is whether the clerk should file all the papers certified, up by the commissioners, or should select out certain ones and file these only; or, to put the proposition in the language of counsel for defendant, "the plaintiff was entitled to one filing for each final recognizance, and one filing for all other papers in the case. The latter s40uld be fastened together, and filed as one paper." This is the position taken by the accounting officials at WashingtqD, and, in accordance therewith,. they have allowed.to plaintiff for the filing of two papers in 'each case. The statute gives a fee of 10 cents for filing and entering every declaration, plea, or other paper. For every paper propperlyfiled,' clerk is entitled to charge the named fee of 10 cents. "W hen the papers in a case are received from the commissioner, it is the . duty of the ,clerk to file the same; and T Can see no ground for holding that he .shQuld select out t118 final recognizance and then fasten together aU the other papers, and file the bundle as a single paper, thus making two papers in The important Vapers pertaining to cases b,ropght before the commissioners are the information, the warrant of'arrest; and return thereon, the entry or evidence, of proceedings had before the commissioner, including the order of committal, the re<)ognjzll,ncc3entered ,into by the defendant, if any, and the fee-bill taxed up by the commissioner. In given cases, there may be other papers of tnoment whi'ehthe commissioner should send up. When received by the clerk, they are papers which he should file; and it is not his duty to select out one, or more of such papers as specially important,and file that, and 'bundle tM others together, according to the contention on behalf ofr, the , defendant. It may be urged that the.commissioners might send up 1Io1arge number of papers which are' wholly immaterial, and that theolerkought not to be paid for filing matters of this nature. n is not the duty of the' clerk to receive and file immaterial pgpers. When papers, however, which are properly sent to him in a given case, are of such a nature that he should receive and file them, then he is not tinder to fasten all together, and can them one paper, when infact they are not. The information, warrant of arrest, the order made by the commissioner, the recognizance entered into by defendant, the fee.;biU,and other like matters. were not parts of one paper before the commissioner, but were separate and distinct; and they remain so when sent to the clerk. He is under.no obligation to fasten them
VAN DUZEE .,. lJlIIITED STATJ:I.
678
together, and, if {or convenience sake he does so, there is no magic in a brass fastening, or the more venerable red tape, which can convert these papers into· one. There is no claim made that the several papers filed in the named in the first division of the account sued on were not in fact filed, nor that they were not papers properly sent up by the commissioners. As I Clln see no legal foundation for the bundling theory advanced on behalf of the defendant, the conclusion is that plaintiff is entitled to recover the statutory fee for filing the several papers in the account described. " The second division in the account is for the sum of $4.50, for filing the appointment of the several deputy-marshals, and recording their oaths of office. The objection urp;ed thereto is "that any service incident and necessary, to the appointment and qualification of an officer should be borneby-him." As between the United States and the parties appointed to office, it may be that such is the correct rule, but it does not follow that the ,United States can require the clerk to perform the service indicated, and then compel him to look to the officer for the pay. Is such, however, ,the rule between the United States and its appointees? Do the judges, marshals, district attorneys, clerks, and other like officers pay the cost of the preparation and issuance of their commissions? I do not understand such to be the practice of the government. The only way the clerk can secure pay for the services in question from the officer would be to refuse to file or record the papers until the fee was paid. Has the clerk the right to refuse to file and record such papers, when offered him, until the proper fee therefor is paid? By so doing, the interests of the government and its citizens might be put in jeopardy; for thereby the public officers may be seriously delayed in the completion of their right to enter upon: the d,ischarge of the duties of their respective positions. Again, if the matter of the recompense coming to the clerk for filing and recording commissionersl oaths of office and the like is a matter between the clerk and the officers, on the theory that such services do Dot come withintne purview of the fee-bill, then how and by whom is the amount to be paid; to be determined? Suppose the clerk demands five dollars, and the marshal offers one dollar. Is the public business to be brought to a stand"stiJl until the question of the amount to be paid is judicially settled? This could not be tolerated f{)r a moment. 'fhe filing and recording of the necessary papers to complete the authority of the given officer to enter upon the duties of his position is work done in the interest of the public, as well as in that of the officer; and the clerk has no right to interfere with the public business by refusing to file and record the papers in question. It is his duty to file and record the same,-a duty due the puhlic; and the government, as the representative of the public, should· recompense him therefor. If, as between the governmeut and the officer,the latter should pay such costs, the government can deduct the-"satlle:fton! the pay coming to the officer. The next item is for furnish:ng a copy of an indictment to a defendant charged 'with selling liquor to Indians contrary to the statute; the sum charged 'being fl,0 cents. The claim is that this should be charged to the pariy'intetestied, and that it is only in eapital.el\Sedhat' the United States
.-:DERAJj·BEPOR.TEB"vol. 41;: funiillh.Jfue del'endant copy of: indictment; free :of1(C08t8ro ,',5eeijon 163'9 oftbeRevised in oases oftreasp.n.a.copy itldiot1hent, a;list'oftbejury, and of. the witnesses, sball . be.deliveredto the:defendl.mt'at least, three days before the'time of in Jother cap"" ital:cases such copyand,list:mustbe furnished at leasttwo.·dajsbefore the i r'I'hesection d08S 1Dbt deal with· other classes of cases,and it Um{S;Dot enact that: deferidants· are not entitled to ai copy of the i'llidictmt'lntagainst, tbem. ;Iri article 6 of. the amendments. to tbeconstitution it is provided that the accused '.'shall enjoy the 11ight toa speedy andpublietrial, ,* to be informed of theilature.and cause of How. · :a defenda'ntbe fully alid properly informed of ofacharge against him except by being furnished· with a copy:of theindictment2.j:Under the provisions of tbe Code of,Iowa, it is required that upon arraignment a copy:of the indictment. shall berurnished to the defendanHn everycase.i The common practice .prevailing in the state aids tbe court ,in determininll; in what mode the constitutional provisMn shaH be carl'iedout, and the defendant beinforme.d me of; the charge and cause af accusation to which he has ,been required to answer. Will it beiquElstioned thaL,.when a defendal,lt:.is-charged with an offense which may' beipmnished by,imprisonment t{)1?,years.or life,it is due to him that he be, furnished with a copy of the.indictment? The constittttional provision: already quoted isa law of higher authority than an enactmentofcongr.ess,:arid it places the duty of carrying out its previsions upon the .congress should enact that a defendant should not have .furnished to,Mm aoopy oLthe indictment, such enactment would not' be binding; upon court; for the constitution makes it the dutyM,the coUtt to ,inform the defendant of theIUliture.of the charge and cause of accusation aglaiinst him; and it is the court to Bee that thisconstitutioD'alprovision'is.properly andfaidy carried out. In'what other mode can-this be dorie, in justice.to the defendant, except by causing:to be furnished to him a copy of the indictment to which he is required to plead ? fWhen the clerk, in obedience totbe.order.oftbe court,-whieh; in tum, is acting in obedience to the constitutional date,-furnishes a copy,o(:theindictment to tbe defendant, the same is furnished under the provisions of a law of the United· States; and for work thus done be is entitled to compensation. - The next in plaintiff's llccount is for making final entries or records in 28, oaSes, consisting of an entry made upon the jacket in which the papers lire inclosed; ,.'" The entry thus made is a brief minute, one to 'ascertain at once the· date Of the disposition of the case, the pllge$ of the fee.;.book 'and·record!wherein will be found the proceedings taken in the easEl, and- is more· in the nature of an index than a record or final etltry. Idonot think'theseentries thus made, highly convenient as they are, can: be brought ·within the provisions of the fee-bill, e:x:c::ept under the head of indexes; and ,as such.they are c.overed' by ·charge therefur.·· To this item the demurrer is sustained. The oniy; objection inade by defendant tothe charge of $9.15 for ing marshals';retu:rns. of subprenas is t1iat,it does.not appear .that the rer have· beetl1 entered,. buttJUs ·objection. is not.well. taken"
VAN. DUZfi:E1l. UNITED STA.TES.
675
The ieturnshave beeilpromptly entered jand no question, ,the;refors. e.xistsas to the right of the clerk, to recover the amount charged therefor. For the entries made of theretum' made by the gratid jury in the eraLcases included in the sixth item" the plaintiff is entiUed to the statutory folio fees, and no more, for the entry actually made; 80, that tiff is not entitled to recover on this item. . The seventh item is for doqketing, indexing, and taxing costs in nine cases at one dollar each. The fee,bill provide& that, "for making, dockets, indexes, taring costs, and other services in a cause which is dismissed or discontinued, '" ** bnedollar."The cases embraced in this item of the account were brought before commissioners, the defendants held to appear, but, the grand jury ,ignored the same, and hence the same were dismissed. The contention. of the defendant is that these were not cases, within the meaning of the;statute. When the informaticinwaa med before the c<:immissioner,and the defendant was arrested, and ,brought before hiniforhearing, the proceeding was a jUdicial proceeding, with adversary parties. Section 847 of the Revised Statutes enacts that the com" missioner shall receive, "for hearing and deciding upon the case of any person with Rny crime or offense, * * *. ,five. dollars a day for the time necessarily employed." If the proceeding before the com· missioner is a: "case," within the meaning of section 847, how doesit cea;se to bea case when it is sent up to the court? The proceeding is one wherein the government charges the defendant with the commission of an offense against the laws of the United States. The,grand jury isone branch of. the court; and, when. the cases are investigated before it, the court is dealing with the cases, through the grand jury, just as it does when the case is subruitted to a trial jury. If the grand jury. finds flU indictment,then the court proceeds toa trial of the accused. If the grand jury' ignores the matter,the court may continue the case for fur. ther examinatfun before another grand jury jor it may dismiss the case; llild order the discharge of the party, if in custody, or the release of his bond, if he is out on. bail. .From the initiation of the proceeding before the until Hs final termination by a trial before the petit jury, or un.tilits dismissal by the court for any reason, the proceeding is a "case," within both the letter and spirit of the statute; and hence the clerk is entitle.d to the dollarchal'gedin each case. The next question raised by the demurrer is to the charge for the'seal a:ffixed:tO ,the copies of ordel's for payment by the marshal of the sums due jurors and witnesses. These charges are contested upon the theory that are not necessary, and not required by the accountipg officers, in; the adjustment of the marshal's accounts. The clerk and marshal, being required to attend each sitting of the court, are cognizant of its orders. Hence, no seal is required,to authenticateordersto·them. The court, to exemplify its orders' to' its· officers, by its seal,is ,to exemplify them to 'itself." If thisl'easoning then it is not necessary fur, the marshal to have furnished himia-copy of the order.; Being llD officer of thecdllTt, arid therefOre cognizant of itsrirders, he can !say: "1 heanl:the Qrdermade by: tbe;court fOJ:'thepaymentof'tbe witnesses and
576
FEDERAL REPORTER, . vol.
41.
jurors', dnd rely upon.the knowledge thus acquired." Wouldthe accounting officers at'Washington pass the :marshal's accounts,shpwing the' payment of thousands of dollars to witnesses and jurors, upon the statement by the marshal that, as an officer of court, he,was present at its'sittings, and heard the order made, and therefore knew thlit he. was authorized to payout the sums named? Section 855 reqUires the court to enteron its minutes. an order for the payment to witnesses and jurors of the them,.and this order is the authority to the marshal for the paym:entsofthe sums therein set .forth. An accounting officer who would'anow the marshalfor accounts claimed to have been paid to witn"essesand jurors upon his bare statement that he had the court make'the order for 'payment would be derelict in hisduty',and I do not believEi;amarshal's account has ever·been 'allowed unless it has been ac· coinpanied with evidence that the court had made the order required by 855. What is the evidence of such order, except a copy thereof duly! certified to by the clerk, with the proper seal attached? The copy, to be of value, must be duly certified tOj and the usual and proper form iato atte&t the :correctQess thereof by the signaturecifthe :elerk with the seal attaclled. An examination of ,the printed forms furnished to the marshal'will show that there is appended thereto the usual form of cer· tificate referring to the seal as attached.. Therefore1 when. a copy of the order directing the payment of witnl:1sses and jurors is furnished to the marsbal,:itshould be so authenticated as to be evidence to him, and also for Mm,·as need ·may arise, of the order as it stands upon the records of the courtjand this can only be done by having the copy duly certified by with the seal attached.· . Exceptjan is also taken to the seventeenth item in the account, which is for the' folio fees for entering order of trial and verdict in 38 cases; the claim being that such services are included in the fee allowed "formak· ing dockets, indexes, issuing venirea, taxing costs, and all other services on the trial or argument of a cause." , Is the entry for an order of trial, or the recording the verdict, service Tendered on. the trial or argument of a cause'? The order f9r trial precedes the tt'ial,and may be entered many. days before the trial itself isbegunj for, until·the jury is sworn, the trial proper has not been entered upon. For..the entry at large, upon the records of the court, of the verdict returned by the jury, the clerk is to the proper. folio fees allowed for making a record. The next item objected to is the fee of 10 cents charged for filing prtecipea for bench-warrants by the district attorneyj. the ground of exception being that the court had already ordered the issuance of the rants, and hence apra:cipewas u·nnecessary. The practice is, upon the return of the indictmentsifor the district attorney to move the court for the issullnceof abench-warrant,and for an order fixing the bail to he given. The order made by the court, however, is not intended to be at once obeyed by the but simply to enable the district attorney to cause the issuance of the warrant of arrestwhenitbecomea, necessary. In many cases :the defendant appears.' Shouldit be made known to the court that the clerk issued the benca-warrantswitl,:lOut awaiting the. orders
VAN DuZEE fl. UNITBDSTATF&
of the district attorney, he would. be admonished that· BUchwas not the proper course to pursue,and would be instructed to await the order of' the district attorney. . When, in a given case, the issuance of the benchwarrant is desired, the district attorney directs it to be done by filing a praxipe; and, in obedience thereto, the clerk issues the warrant. The filing the praxipe is in accordance with the settled practice of the court, and the clerk is therefore justified in filing the prtecipe, and making the proper charge therefor. The same rule applies to the charge for the praxipes filed for the issuing mittimuses for the committal of defendants who ha,ve been sentenced to pay given fines,. and be committed till paid. The collection of these fines is under the control of the district attorney; and it is for him to determine when the exigency of a particular case requires the committnl of a defendant, and the issuance of a mittimus for that purpose. In the issuance thereof, the clerk obeys thee direction of the district attorney, and the proper mode is for the district attorney to file a praxiJp8 when the issuance of the writ is desired. Tha exception to the forty-second item presents the question of what should be"entered by the clerkin making the final record ih a case; .the defendant being that the final record should not embrace any ofthe proceedings before the commissioner. It is required by the court that the commissioners shall send up in each case a brief return, showing the steps taken in the case before them, and the conclusion reached therein. The court is charged with the duty of examining the accounts of the commissioners for services rendered in all cases before them, and the return or order thus required is a means. for securing correct accounts from them. In the absence of any statutory provision touching the matter to be embraced in the final record, the court has adopted a rule upon the subject providing that, in all criminal cases, unless otherwise specially.ordered, the final· record shall, include the order made by.the commissioner binding the defendant to appear 'before grand jury, the indictment, thepresehtment thereof; the bench-warrant, if any,and return thereon, the plea of defendant,the verdict of the jury, and the final orders and sentence of t];le cOurt thereon. In carrying out this rule. of court, the clerk has entered the' brief return of the commissioner, which shows the order committing the defendant; and the ground taken, that there is no case in court until the indictment is found, is not well taken. The rule of court above referred to governs the clerk in making the final record in criminal cases, and for services rendered in accordance therewith the clerk is entitled to compensation. The exception to the docket fee of one dollar, charged in case No. 8,140, removed for trial from one division of the district to another, is sustained. The case has not been discontinued, nor dismissed. When it is terminated, the proper docket fee will then be chargeable. The last exception is for the fee charged for making copies of subpamas furnished to the marshal, to be left with the witnesses when they are summoned; it being claimed that paragraph 5 of section 829 of the Revised Statutes forbids such charge. This paragraph fixes the fee payable to the marshal for service of a subprella, and forbids the marshal v.4b.no.l0-37
from; making .il' further charge fori ()Opy, (summol1J3, <:>r notice to a Witness., The section has. refel'enbesolely to the' :fuE',s ofcthe and does not deal with the Jees,:duethe clerk. ThabS. copy of thes.uopamashould be left. with the'wittlesswiU not be questioned. It is 11 standing rule' of this court that the clerk'; in issuing /lubprenas. in crimina.! cases,shall make copies thereof, !be with the witnesses. This nule was adopted by. :tlte court to ipsilre,prompt and·ptopet service .of;subprenas. The marshal receives ;Iiothing,for serving, the copy, and the .inhibition found in paragraph 5 of{section 829 is observed. The clerk iSibound by the rule or court to make these copies. The services are within the line of 4is duty, and no reSson is perceived why he is not entitled to compen. saUon therefor; :' ..,' · '. There is, it seems to'me, a fundamental error in the'viewtaken of this line. of questions by the accounting officers of the. department; and that iathe assumption that there is no legal: basis for.al1owingrlompensation to the clerk, unless some section of tbeRevised Statutes.,orofthe Stat. uOOR at Large, specificallyrequirestliework to bedone.rhlt'will not be denied that the court has full power and :right to adopt rules regulating the procedure of thecon·rt in criminal cases. When the. oourt, in the exercise ofthisundonbtedright, adopts rules requiring the clerk to fur. nish copies of indictments, copies ofsrubprenas, to iooludecertain matters· in the final record,:andother like requirements, the.JegaJ:duty and obli-:, gation of the clerk to perform such services is as well established as though, Bueh rUles formed part oUhe Rev,ised Statutes. If the work thus done in,obedience to the: rule ofcourt falls within the character of services for -mhich the allows compensation, the clerk is :lega:lly entitled to thestatntory compensation therefor. .: . The foregoing: opinion 'covers all, the questions of law presented by the' demurrer;, and,itnot being questionedl ,that the serv:iooswere inract rendered, it follows plaintiff is entitled:to recovedorMemsNos.l to 8, iIlclusive; 5,7 to 16, inclUsive; 181021, inclusive;: 28., 24, 26 to 33, inclusive; 85: to 42, inclUSive; 44,45, 47 to 5·2, inclusive; 54,65, 57 to;77, inclusive; and 79,to 9,9, inclusive,-amounting in all to 8516.15,· ......and is not entitledto;reoover·forNos. 4, 6,17,22,25,34,43,46, 58, 56, anci7S. ' .
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York wer.,toi88ue. an. atta.Cbment, a.Dd direct.the,.same .to the'lIlarsha.l.oftheUnited State!! for allY Qthel'distri,?t the state of New )Cork. " i ' , , ' , ",;
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Gum.bel' '(.Pitkin. 8. 151,8Sqp. Ct. HYde.llO;U. S. Ct. Rep. 27: Bates v, 17 Fed. Rep. 167; GUi(lon v.li'ontailJe. T. (N.. S.)502: Lamaster v. Keelel',123 U. 8.389.8 Sup. Ct.,Rep· .I97; McCracken v. Hayward. 2 How. 608: ErtJ . parte Rail1'oad C()·· 103U.S. 794; Society,v. Ford.1HU. S. 635. 5 Sup. Ct. Rep. 1104;' Erstei'l) v. }J,oth"chUd.22 Feu. Rep. 61; T:ilton. v. Cofteld.93 U. 8.163; Fit$patrick v·. Jll((ln'fl,agan.l06 U. S. 648. 1 Sup. Ct. Rep. thews v. Densmore. 109 U. 8.216.3 Sup. Ct. Rep. 126.
Ed; Hamilton Oahil, for defendant, .cited:
Spear. Fed; Jud.661; 2 Abb. U. S. Pr.166; Binns v;'W'iUiams. 4 McLean. 580: 'PioqUet v. Swan. 5 Mason. 35; Tolandv. Sptague. 12 Pet. 327; ErtJ parte Graham. 8 Wash. e. ,C. 456; .Day v. Manufaeturing Co·· 1 Blatehf. 630; U. EJ.v.. WilUams. 4 CrilDch. e. e. 372; Reft"igerator Co. v. Bouthar.d. 12 LACOMBE, J. This waB commenced by plaintiff, a citizen of NewiYorkand resident of Brooklyn, in the Ne\v York supreme court, in Kings county, and was removed into the circuit court for the eastern district of New. York by the defendant, a citizen and resident of New Jersey. Subsequently, issue was joined by the service ofan answer.. The action is one COmmon law. On February 10,1890, plaintiff procured from the judge. circuit court in the eastern district a warrant of attachment. against defendant's property, addressed: "To the MarshllJ of the UnitedStateEl for any District within the State of New York." Levy has been made under the ,warrant by the United Stlltes marsh1l1 for the southern district upon property of the defendant found in New York city. Defendant does not question the regularity or the sufficiency of the papers on this warrant was issued, if tested by the rules or practice oithe state c.Gurt. He moves, however, to vacate the attachment on the ground that the circuit court for the eastern district of New York has neither power nor jurisdiction. to issue an attach.ment, and .direct the same to the Imtrshal of the United states ,for any other district within the state of :New York. The case chiefly relied upon by the defendant is Toland;v.Sprague, 12 Pet. 800. In that case,plaintiff was a citizen of Pennsybania; defendant, a citizen of Massachusetts, dOllliciled, for eome time. prior to tbe commencement of the suit,.without thelimits.of the, United ' The tlctionwas commenced. by prOc.ess of foreign at-