UNI'fEP ,STATES V.
881
under the act of 1846, particularly the thirteenth section of that act, the probate court of Houston county had the power to approve a land claim, and order the execution of a deed by the administrator, is a question of much nicety. It is not essential to the disposition of this case for the court to pass directly upon that question. It will, however, be observed that the section last mentioned authorizes probate courts to approve claims not only for money and personal property, but also for land. Would it not seem that, having the power to approve a claim for land, the court, by necessary implication, had all necessary power to render effective and operative the power expressly granted? If that be true, then the court had the power to make the decree, and order the execution of the deed. But a decision of that question is deemed unnecessary, and is not passed upon. My conclusion is that the probate court of Houston county had jurisdiction to pass the order in question, and that the administrator had the power W execute the deed conveying 1,000 acres of the Grigsby league and laber; If there existed any irregularities in the proceedings affecting either the order of the court or subsequent execution of the deed, under thoroughly established principles, they could not be inquired into in a collateral proceeding of this kind, and they may well be deemed healed and cured by the half century which has since elapsed. The objections of the plaintiff will be overruled, and exceptions noted. The record being admitted in evidence, the court instructed the jury to return a verdict for the defendants. Motion for new trial presented, argued, and refused.
UNITED STATES V. FITZSIMMONS
et al.
{CircUlf,t Court, N. D. Georgia. March 28, 1892.}
1.
UlIlITED STATES MARSHALS-LIAllILITY ON BOND-FEES-INTEREST.
In a suit upon the official bond of a United States marllhal for sums due on his fee and emolument account, interest should be allowed from the date when a balance was stated against him by the treasury officials, although the amount found to be due is less than this balance.
9.
SAME-ALLOWANOES TO DEPUTIES-AcCOUNTS-WAIVBR.
B.
Rev. St. U. S. § 841, providing that the allowances to any deputy marshal shall in no case exceed three fourths of the fees and emoluments received for the services rendered by him, does not make it unlawful for the marshal to allow three fourths of the gross fees, without first deducting the expenses incurred in earning the fees; and where during his whole term of office a marshal adopted this basis of settlement, both with his deputies and with the treasury department, and no objection was made thereto, he cannot, in an action on his bond, claim that the settlement should have been on the basis of three fourths of the net fees. A marshal is not entitled to the actual expenses incurred in earning a fee, in addition to the statutory allowance. There is no law or practice entitling a deputy marshal to all the fees earned in individual cases.
SAME-FEE8-ExPENSES.
t. 6. .
S.UIE.
SAME-EMPLOYMENT OF AUCTIONEER.
. A marshal has no authority to employ an auctioneer to sell propert1 IlIld 18 not entitled to any allowance for the expense thereof.
'.. ,
,is Ulltentitled to ap, allowance ,for expenses in sending a ,third.perllon:tOfu vestigate a controversy between himself 'and one of his deputies. · j ' iA1
,
.
I1uu'l!.b:alandthe ,sureties, onhlll bond are not lIa1:lle: to' his deputies for fees due to hilll;. the!r Qll/oim is .against, government; anll beilee, itla suit byt'be governmeotonlils bond, he is not entitled to a set-off for tea. IBill owing to bls deputies." . ,
D)IlPUTYFOR
Fnk
, .
"'.
8.··,SUlB+-AooJIQN ON, .BOND-'J1RJAL-!:-W&Iv:ER.
:,W,'bere,acqoullts ar'il.lnvestigated before an. auditQr·.without any objeo,'tt6n to the scope of tbe investigation, tbe parties cannot, after the report has been "on fill:! ,for seven montbs, for tbe'ftrsttime object tbat tbe pleadings were not : btoac1 enough to cover certain upon. , "
,At Action by the States against O. P. Fitzsimmons and the sureties on his official bond as United States marshal. Heard on to the auditor's report. Exceptions overruled. S.A.J)arneU, U. S. Atty. ..· Joh'rl8t<m, Jackson &: King,J. S.Hook, W. W. Montgomery, J.M.;Smith, J. M,. RU88eU, Henry Jackawt. John I. HaU, George Hillyer. and wea JeBra'TlJ1t, for defendants. ' NEWMAN. District Judge. This suit was brought in November, 1885, by the United States, against O. P. Fitzsimmons, late United States marshal. and 'the sureties on his official bond, for the sum of 814,249.09, -Which, sum, it was alleged, had COme into the hands of the said Fitzmlu'shal, !liDcLwhich he has failed to payinto the treasury of the United States, as required by law. The declaration was amended on the 8th day of June, 1886, which amendment, in connection with the original declaration, will be noticed hereafter. Demurrers, upon the grounds therein stated, were fiMd, both to the original and amended declaration, to whicQ.I will also allude hereafter. On the 15th day of May, 1886, this case was referred by my predecessor, Judge MCCAY, to an auditor. "to hear and determine the evidence submitted by either party, to investigate the accounts between the parties, and to perform the powers ancl, duties authorized by the laws of Georgia, and to report his findings as early &spracticable to this court." On June 21, 1887, the auditor filed his report, and to that report various exceptions have been tiled. In January,,1888, this report was referred back "for the purpose of allowing .the auditor to separate the items of indebtedness found due by the marshal to the government, to wit, what amount due by him fees of jurors, fees of. witnesses, support of prisoners, miscellaneousexpenses, and fees and expenses of marshals; also 'to hear argument as to the rate,M interest to be;,paid by the marshal on the principal sum, arid also to hear evidence as to a credit of three hundred and twelve dollars claimed by the marshal to have been allowed him by the department for extra services." In accordance with this order a supplereport was filed by the auditor. on Janaary 27, 1888. To the exceptions filed originally additional exceptions were added subsequently, without objection. I will take these exceptions up in the order in which they appear.
fl.
883
The, first is that .the report does not cover the points in'valved lfith sufficient directness and fullness, in this:" i (a) That itfails to s4q}V of the. account between the Uliited:States and said marshal touching the fees and emoluments of the marshal'll office. This is obviated, I by the; supplemental report of the au· ditor. This was one of th-e grounds for referring the report back to the he might separate this finding, and show under what auditor, branch or head, the default on the part of . the marshal existed. It apPears that the marshal received money dUring the greater part of his term whi,<;h was to be disbursed under five separate heads, viz., fees of .jurors,fflesof witnesses, .support of priBoners, miscellaneous expenses, a.nd fees and expenses of marshals. It was desirable, inasmuch as he received the money to bediBbursed under these several heads, that the report ,should ,show more accurately than the original report did under 'whi9h ofthf!se beads balances of accounts ,were found against the matshaL The,supplemental report shows that the entire amount found against the marshal is under the head of fees and expenses of marshals. S(). that, as 1 have slated. this Ejxception is thereby obviated. . The Qftbis exception are (b and cI) that said raport.fai1s l;lhow the state of.theaccount between the United States and the marshal, Ils to money appropriated for fees of jurors and witnesses .for the fiscal year ending July 1,1881. It is sufficient to say with ref-i to this that the auditor finds no default on the part of the mar.' .shal under either of these heads. The next division of the exception is: "(e) said report does not find or determine whether or not the mar· shal unlawfully withheld and failed to account for the fees and costs from individual cases." As to this it may be stated that the finding of the auditor is precise
and full. Indeed. he seems to me to be more explicit in this than any other branch of his report.. He l3ets out the evidence on this subject in his report in full, goes into a thorough explanation, and appends several tables showing ho.w and what he finds upon that subject. The next subdivision of this exception is (f) that the report does not find what was the gross earnings of the marshal's office for the years 1878, 1879, 1880, and 1881, nor for anyone or more of said years,' nor does said report show that the marshal has failed to account for said I think that the report of the auditor, aemoneys wholly or in companied,as it now is, with the supplemental report, is sufficiently definite. The auditor charges the marshal, as a disbursing officer of the government, with all the money he received in his official capacity from the United States and from individuals. As to the amount rethere iBno contention whatever. He then proceeds to credit him with all disbursements lawfully made. The report seems to me full and ample. It is accompanied with tables showing the various calculationsand findings of the auditor under the different heads in detail. I do not think this exception can be sustained. '.. ., .-., 0
,-
3$4
FEDERAL REPORTER,
vol. 50..
The'second exception is that theaudHor failed to give the marshal (lredfli for an, item of $312.20. In the supplemental report this amount is allowed the marshal by the auditor, so that it need not now be considered. The third is a general exception that the auditor erred in finding as much as he did against the marshal. This is a general exception, and will be controlled by the findings on special exceptions, which special exceptions embrace every point made against the report. The fourth exceptit>n filed by the original counsel in the case is that the auditor erred in the rate of interest found against the marshal. This point was 6mbracedin the reference back to the auditor; and he has amended his report in this respect, and only finds interest from February20, 1885, the date when a balance of the fee and emolument account was first stated by the treasury -department against the marshal. The objection to the rate of interest is obviated by the supplemental report. It is further contended, however, in the argument, that no interestshould be charged until the rendition of the judgment in the case, ()r at least until the filing of the report of the auditor, if his finding should be sustained. The cases of U. S. v. Ot£rtis, 100 U. S. 119; U. S. v. pqwer, 106 U. S. 536, 1 Sup. Ct. Rep. 481; and U. S. v. CoUiir, 3 Blatchf. 327,-are cited in support of this position; the contention being that where suit is brought for breach of an official bond, where intricate accounts are involved, and where more is claimed than an investigation shows to be due, no interest should be charged against the defendant until the amount becomes a liquidated demand by a judg. ment finding the precise amount due. In otber words, that there is no liquidated demand until judgment. I do not think the authority cited shows any rule that would make the finding of the auditor error. He interest should commence to run February 20, 1885, the date when a balance on the fee and emolument account was stated against him fora larger amount than the auditor finds. I think the auditor's finding on this subject is correct. On the 28th of January, 1888, additional exceptions to the auditor's report were filed by the counsel who have come into the case since the report was filed, which I will now proceed to consider. The first exception isRS follows: "Because the auditor, in considering the accounts of the marshal, submitted to bis investigation by the order of this honorable court, did not audit the same according to law, and failed to reduce the return of the marshal of his gross eal'Dings, according to the rule of law prescribed in such cases, to wit, the rule which requires the reduction of the gross earnings to net earnings by deducting the cost- of th" gross earnings. See sec· tiou 841, Rev. St. U. S.1878. See Circular of instructions based on this law, issued ,from treasury department, first comptroller's office, December 5. 1885. by M. J. Durham, comptroller. This law and these instrucas furnishing the rule of adjustment by tions having, been the auditor, the defendant by his report is found to be debtor to the govwllereas, if the rule of law had been observed by him, his report would have shown indebtedness on the partaf the government to defendant.
UNITED STATES 'V. FITZ8IMMONB.
885
The only ground upon which the government can recover In this case Is upon the theory of a breach of marshal's bond; but, if the law applicable to the case has not yet been violated by the marshal, there is no breach. This exception is vital and important, since the anditor, in his amended and supplemental report, declares that the a ward he has made against the marshal is based solely on his fee and emolument account.!' Argument in, favor of this exception is based mainly upon the circular issued by the first comptroller's office, treasury department, at Washington, D. C., December 5, 1885. This circular, and any argument based thereupon, might be disposed of with the remark that it was not issued until 1885, and the term of the official whose accounts are under consideration ended June 30, 1881. It seems to be conceded by all parties that this circular was issued for the purpose of establishing a definite rule upon a subject as to which no precise rule had existed before. The matter would therefore, it seems, be controlled by the statutes, without reference to any ruJing or instructions fr0!ll the treasury department; but I will consider briefly the portion of this circular which is cited here in conneption with this exception: "Marshals, in making the semiannual return of their eUlOiuments that is l'equired by section 833, Rev. St., are to charge themselves with all the fees and emoluments of every name and character. They are to charge themselves with the gross amount of the fees earned, as contradistinguished from the amount which remains after the deduction of the expenses that were incuned in the earning of the fees. ... ... ... The marshal, having thus charged himself with the gross fees and emoluments of ,his office. is entitled to credit for the actual and necessary expenses that he has been put to, either by himself or deputies, in the earning of those fees. The expense of earning a fee is properly an expense to be paid by the marshal, and not by, the deputy, since the fee itself, to which the expense is but an incident, is payable to the marshal only, and not to the deputy. According to section 841, Hev. St., a marshal, provided the attorney general consents, may pay a deputy as much as three fourths of the moneys which he receives. or which are payable to him by reason of the service of such depnty. It is proper to make this calculation on the basis of the net earnings of the deputy; that is to say, on the gross fees receivable by reason of the service of thedeputy,diminisbed by the expense actually and necessarily incurred in the earning of them." As I have stated, it seems that, prior to the issuance of this circular by the first comptroller of the treasury department, no general rule prevailed as to settlements between the marshal and his deputies, even if suph rule prevails now, in the various marshals' offices of the United States. The plan adopted by Mr. Fitzsimmons in settlements with his deputies seems to have been to pay the deputy three fourths of the fees, and that he did not deduct from the gross earnings, and repay to the deputies, the actual expenses incurred before making the apportionment of one fourth and three fourths between himself and the deputies, respectively. It seems, also. that the marshal, in stating his accounts to the treasury department, during the whole of his term of office stated them 'as to settlements between his deputies and himself in this way, and that, during the whole of his term, he made no claim for settlement with him or allowance to him upon any other basis. The language of section 841. Rev. St., on this subject, is: v.50F.no.5-25
Jr,EDJmAL. JtEPORTEB,vol.
50·.,
.qlJy
to any deputy 1,11 ,no case three fourths of, the received ,or, paYilbtefor the services by,him. be redupedbelow ,by the attorney general. whenever the such rates, to, unrtm\louable."
" in statllte'topreveilt the I,J;111rshal fr9madopting, this' basis of settlement with his deputies, and nofhltig"tp from settling his accounts on. the basis.. is nothirlg in the report of the auditor showing whether or. not this question was' made and discussed before him. , The ablellndindustriotls who represented the marshal before the auditor lj>rob.blymade'e"ery question which could, under the law and made. But, if it was made before the beetljusti£iec1 in disregarding tl).e plan and basis of settlemeiitadopted betWeen the marshal and deputies, and recognized by .,Besides; if' no account,was taken in the settlement'between the'tila'r'$hal atid deputies, as they were made from time to'thne, of the actual' exptmses which were incurred by the deputy, would any, record" be found now of such" actuaIexpenses,and whete' :#6u14 "b1Jtained,iti any satisfactory way, upon which to}>,aseareadjustmetit 9fthe accorin'ts upon the plan suggested as the the defendants' counsel? I think it might be safely COllsideredthat this was lliisufficient reason to justify the.auditor in declining to matter, even if he had been authorized and disposed so to do. 'rije marshal is bharg'edby the gdvernment with the, gross earnings ' ,The settle,m'ent between' the government and himself is of htil the ba'sis'Of his and it is to the governmeti't how the (poney is apportioned, as between the marshal and the deputy, provided lhe,amount paid ant is not in excess of the gross earnings ()f the ,office;, I state this, not to show that the present con'strilctiollof this statlite,as announced in the circular issued in 1885, is not a proper and of'the statute, but to show that the . rule adopted, by this UllloI'shal could not be, considered a violation of the statute. It. is a quesmonJ .after all, hehv:een the marshal and the deputy. A.nd in addition,jf the auditor hada.clopted the course suggested by defelldants' c,ounsel in adjustment"would henQt have been finding that the, marshal hlid, done what, asa matter of fact, judging by the marshal'si them,aI:shal had not done? Where two methqds of ;Iteeping accounts them would be legs,!, and one of the two methods js pl,lrsued during the entire term of a government official, and ofhls term o(offlce a,controversy arises between the as to of his accounts, which results official andJhe in a 1;>y the goverun.lept against the official, can it be claimed that iua,djU:s,tingthe thecOu!'t should adopt the other method, and readjust the,whole accoi:ints by this plan? I do notthink so. It may be properfor' me to add, although the amount in issue would not affect the legal question, that I alp unable to see how more than $798.58 would be involved in this point; this. being the ,amount of overpayments found by 'the auditor to made by the mars.hal to the deputies. If
UNiTED STATES V. FITZSIMMONS.
387
there shoulJ bedeductedfrom this $420. 20 paid to A. P: Woodward,in the earning ofwhich, as he was.,clerk in the office, there was probably no expense whatever,-it would leave only $378.38 involved. No exception is made to the general plan of investigaeon by the auditor, which treats the 111l1rehalas a disbursing officer of government', and therefore the only amou*t involved in this' questiop. would be, such amount of actual paY!lients in cash by the marshal, as the auditor refused to allow; and this is covered by the sum I have just stated. This was the point mainly relied 011 and ably argued by the distinguished counsel who have recently come into the case, but I am unable, after giving it the most careful consideration of which I am capable, to coincide with their views. Something was said in the argument upon this branch of the case about the qw.rshal being entitled to the actual expenses incurred in earning a fee in addition to the statutory allowance. This position certainly cannot be maintained. I see nothing in the statute, and noth' ing has been shown fo me, to justify such an allowance. The second point in the amended exceptions is this: , ; "Because the law in regard to individual fees, or fees in individulJ,I cases, is violated by the auditor's report, by his charging all these fees to the marshal. when the very report of the fee and emolument account upon which his judgment is based shows that all these were earned by the deputies, and paid over to them, and recognized as properly disposed of by the department at Washington city; making a large charge in this way, illegally, against the marshal, of This exception appears to me to be founded upon an entire misappre- . hension of the report. I am unable to see any ground for the exception. It seems to me that the auditor dealt with the marshal, in the matter of individual fees, with great liberality. The only difficulty as to individual fees seems to have been in the southern district. If I understand this exception, the meaning of it is that the deputy should have all the fees earned in individual cases. There is no law or practice, so far as I am able to ascertain, to sustain this position. The fourth amended exception is the alleged failure of the auditor to report the evidence adduced before him in full. As I understand the statement of counsel, this exception is not insisted upon, because the questions they make can be fully considered without it. In what I have already stated, and what Ishall hereafter state, I shall endeavor to .give each exception fair consideration, and I presume this exception is not insisted upon; .and if it should be, the failure to report the evidence was, I think, by consent of counsel. Certainly, no exception was made on this point either at the time the report was filed, in June, 1887, nor subsequently, until January, 1888, and in the mean time the case had several times been set for argument., The fifth amended exception is: "Because the auditor exceeded his jurisdiction In undertaking to disallow charges hereinbefore and hereinafter more especially Sl.'t forth. which had been allowed at Washington, especially as no iSsue is raised in the declaration upon the correctness of these charges."
3.88 ."', ,
,FEDERAL
vol. 50.
'I'be al'gull1en.t before me on tbisexception was that the scope of the declaration was not SUfficient. to justify certain branches of the investigation. Tbe original declaration was filed in the case in November, 1885·. 'Tothis declaration a demurrer was filed. Afterwards, in June, 1886, an RIIleJ:l.dIllent was )he declaration, and to this amendment there se'ems also to have a demurrer. At least, I find two amQhg the, papers,--,olle to the original and one to theamended a plea. None of them, however, appear to have declaration, been ,filed in office; but I will treat them as of file, for the purpose of considering this question. It is sufficient for me to say upon this point thatI think 'the declarati<nl, as amended, sufficiently broad to justify the to the matt,er'by the auditor; and in addition to this the entire investigation seemifto have been gone into by the ,auditor with defendiu:I,tS represented during the whole of it, and without any objection during its entireprogres$, so Jar as appears, to any bra,nph pf the investigation; . 'And, further, this report was filed in office. more than seven was mac;le whatever to the manner of inmonths before any vest:gati0l1 by the auditor or the report upon the ground that he had gone outside of the pleadings.' The sixth amended exception is: "Because the aUditQr in.cbarging the marshal with $1,025.67 entered in the and, emol ument return for the six months elidinS June 30,1879, as ·not from tbe States, and, again. him with $2,125.58 entered in the fee and emolument return for...the s.ix months endDecember 31, making the sum of $3,151.25, erroneously cbarged . agains,t tbe mArshal, an of 'whicb appears in Exhibit N of the l'eport. " I beliiwe,'hi discussiorl before me, counsel for defendant were all satisfiedwlth'fhe explartatioIl,'.of the district attorueYtts to the meaning words, "not and I donot understand that they inof sist upon this exceptioll;but,if they do, their exception is clearly founde<i upon a miscOl1eeption of Exhibit N, (pages 1, 2,) which is called by the auditor an "aostract 'of emolument returns." The auditor does not charge the marshal with these items as cash received, as counsel Seem tothink. He charges him generally in his report, as I have stated before, :with the cash received from the government, and the fees earned in individual cases, and him with the amounts actually disbursed, where they arelegal. The part o.f Exhibit N referred to is, if I understand it, merely a basis of computation, and not a charge ' against the ·marshal. The seventh amended exception is because the auditor erred in not allowing the charge of the' marshal for attendance on the United States courts in Savannah during theirterms of 1879-80 and spring term of 1881, amounting to $357 .50. This is. a claim that the marshal should have been allowed, in addition to the per diem and mileage allowances paid him by the government, his actual expenses in attending the courts in· the southern district. No law was cited, sustaining this allowance, and I am not, 'aware of any. ,Besides this, it appears that this item was never presented'to 'the department at Washington, and had never.
UNITED STATES V. FITZSUlMONS.
889
oeen claimed by the marshal until he claimed it before the auditor, Counsel for defendant, when they were informed that no claim had ever bee made on the department for this amount) I believe, abandoned thifi position. . Certain other exceptions are appended to these amended exceptions, which are called" exceptions of fact. " The first of these states that "The evidence clearly shows that the cost of the earnings was (taking a fair average of the evidence on this point) say 331 per cent. of the gross earnings. The auditor failed to take this view, disregarding this evidence, and brought the defendant in. debt, as reported by him. whereas the. evidence, should have made a finding against the government of five thousand dollars. », While this is called an "exception of fact," it is wholly an exception of law; and I have already discussed the question involved under the other exceptions, namely., as to 'whether the auditor should have gone into the question of deducting tpe actual expenses from the fees before making an apportionment between the marshal and deputy. I hold", therefore. that this exc;eption is controlled by the ruling ()f the courtupoI\ the first. of these amended exceptions. The second of these exceptions of fact is that"Assuming. for the sake of argument. that the auditor was right in charging the defendant with individual fees, to-wit. $1, 1U7 .19, in the northern dis-: trict, and $1.191. 74 in the southern district. he nevertheless erred in failing to credit him with these three fourths of the amount earned in the northern district. to wit. $830.40." . The exception is based upon a misconception of the auditor's report.: This charge to him of $1,107.19 in the northern district is a charge made as of cash that went into his hands, because, as I have stated, the auditor charges him with the cash actually received from the government, and the fees in individual cases; and thiR amount of $1,107.19.is the net amount after deducting from the fees allowed for services in In< di vid ual cases the actual expenses incurred in earning them. All thi,s will be seen in Exhibit E of the auditor's report. Of course allowed for disbursing this amount will be found in the amounts allowed, various deputies in the northern district. If the auditor had given the' marshal credit for three fourths of this amount, and then credited him· with the amount paid to the deputies for earning it, the marshal would, have received a double credit on this account. The auditor, in individual cases, allowed the marshal a deduction of actual expenses before charging him the amount of individual fees that came into his hands; and this for the reason that he treats the marshal, as I have stated, as a disbursing officer, and therefore charges him, in individual cases, only with cash actually received, while in criminal cases he adopts the plan," of disbursing money received from the government, used by the marshal himself. The third exception of fact is because the auditor erred in refusing to allow the marshal credit for the two items on page 9 of the report,one for $lO,and the other for $43.25; the first being for fees paid an, auctioneer for sale of property, and the other for expenses incurred by A.: "
:FEDERAL REPORTER, vol. 50. attending of -the nlarsh'lil's6f1ice; the said charges:nothavihg allowed by the department ft;tWashington. I am' not aware of any ll1w'authbrizihg anlarshal auctioneer to se)! propertY,. The other amount was for expenses incurred by the in: sending Mr,'lWt>6dwhrd :to investigate amlitter in controversy between one:of his ideputies. I d6bot think that this couldha;ve, been allowed las a charge against the government. . .· The fOurth: exception offactis: ., the auditor erred in chargii'rg -the ml,\rshal with $420.28 as overpaid A.. P. Woodwarc,i: the fact being thllt. no 'overpayment was made to him.'" " ' .' .. IfI,undlirstand ,the matter correctly, there is really no issue of fact as to thisitetn.' Theamoilnt earned ,by A. P. Woodward, the deputy naniedi' arid the amount really paid him, I think, are not disputed; and the questi'on as to whether there was an overpayment to him is, I presume, by the general question as to method of settlements by the 'marshal with the deputies, which I have discussed. If it is not so controlled, and there is an issue of fact on this point, defendants will be permitted to produce evidence beftire the jury Oll it. The fifth exception, as to a disallowance of $159.51 paid to J. B. Gaston, makes ,8. questionM fact, on which the jury should pass. All ofthese exceptions,have been argued before me and SUbmitted; and, in compliance with what I understand to be the desire of counsel on both sides, I announce these views. The case may now be set for hearing before a jury, tlla:t it may finally be determined. ON MOTION FOR NEW TRIAL.
District Judge. In an opinion filed March 12, 1888, in the above'-stated case in passing on exceptions to the auditor's report, I discussed and disposed of every question then raised by defendants. The question presented in areument Oil the motion for new trial, and the one- which is mainly relied upon, was before the court on an amended plea, and motion to strike the same, which was argued and disposed of June 5, 1889. Plea filed by'the defendants at that time was as follows: "By leave of the court. deft'ndan,ts amend their plea, and for further plea say there is still due from plaintiff to defl:'ndant Fitzsimmons, for the use of certain of his for se,rvices rendered by them as such deputies during the term said Fitzsimmousheld the office of United States marshal for the northern district of Georgia, the slim of eleven thousand. nine hundred and eighty-six and 17·100 dollars. The amount due each of such deputies will further appear by r.eference to the bill of particulars hereto annexed. Said sum defendants plead in defense of plaintiff's claimso far as it is necessary to meet it, and show nothing due plaintiff, and residue defendants plead as setoff in favor of.defendant Fitzsimmons for use of the Said deputies to whom Bame is due and owing, and pray jUdgment for the same." It 'perceived that the question there raised. is .as to the right of' defendants to Set off against· the amount found by the auditor in favor of the government the amount which, in an a,ddendum to his report, the auditor finds is due by the government to various persons who NEWMAN,
UNITED STATEs
391
were deputies under Marshal Fitzsimmons. .The finding of the auditor on this suqject is in these words: "In the of thisc!,se it became necessary,1!P go into the account of the deputies the United and to ascertain the amount disallow'snces·. etc., and tbus to ascertain of their the balance. due them; and while. in accorqance with the view I have taken of the case, the statement of these balances is not neCeJJsaryto Ii proper unOf the issues involved, yet I. have thought proper to append a table, set fort/l in Exhibit L. cQverh;tg two pages, showing the balance due the deputies ,tl;lere named from the United States." . He then appends a table of the' amounts due the various deputies. This was nqt a matter referred to the auditor;. and, as will be setln by the langungeHhe uses,' he did DOt so consider it. The verdict in this case, which ,defendant desires now to have set aside,isin a suit Lt..Neen the United States, as' plaintiff, and O. P. Fitzsimmons and the sureties on his official bond, as del{mdants. The deputy marshals were not partiesto,the 'case, and, I understand that the finding of the auditor as to amounts due them was simply a voluntary statement of that which might be at same time beJ;lefieial to perso-ns at interest. As. a knowledge of the amoullt due by the, government to these various deputies came to him in the course ofhisiuvestigation; in auditing the account between the and Fitzsimmons, he attached it to his report, not as a finding on matter referred to him, but because he probably thought it might be desirable for future In a suit before my predecessor, Hon. H. K. MCCAY, in the circuit court for this district, between some of these very deputies Rnd O. P. Fitzsimmons and his sureties, a ruling was made by the cO)lrt which maybe of interest just here. The entire report of that, case, which I findin 1 Ga. Law Rep. 116, is given, for the reason that that periodical seems to have been very shortlived, and probably but a few num1;>ers of it are in existence. The case stated therein is 8S follows: "J. B. GfUJton, L. G. Pirkle, and A. P.Woodward vs. O. P. Fitzsimmom et a1. "(U. B. Circuit Court, Dtstrf.ct of Georgf,a. November 14th, 1885.) "BOND OJ!' l1. B. MAllSIuL-BUIT ON BY DEPUTY MARSIULS J!'OR FEES-LIABLE WHE1t'DBMUllllEll.
"A suit cannot be maintained a U. B. marshal, and the sureties on hts bond, for fees of U. S. deputy marshals paid over to him. Buch clam is against theU.S.
"Gaston and two other deputy U. S. marshals brought 'suit against O. P. Fitzsimmolls, U. S. marshal, and the sureties on his bond, in the United States circuit court, for the northern district of Georgia. claiming that vari. ous sums of money were due them for fees earned as such deputies; that said sum of money had been collected by said Fitzsimmons from the United States, and that he had failed to pay the same over to them. Defendants demurred to the declaration in said cause upon the following grounds: (1) That the court had,no jurisdiction. (2) That, if a liability existed, it was an indivulualand not an Official one. (3) That the deputies were co-obligors with the marshal. All of these cases were tried together on said demurrer. "J. O. Reed and Haight de Osborn, attorneys for plaintiffs.