BAXTER ". 'UNITED STATES OJ'·, AHERICA.
611
tion oftitle, or could treat the action as sounding indamag-es when the evidence of the trespass was ,of such a, character as, to require it. The Code abolished formal differences between actions. .It did not affect the Bubstance of them. Hellams v. Swflur, BUpra. This complaint is, in sub:stance, the old action of trespass to try title; and as in that action, so in thifl, damages are the result of the delicit which justified the action, and the punishment the law inflicts upon proof of it. A formal order will be filed in consonance with this opinion.
BAXTER
".UNITED
STATES
OJ'
AMERICA..
(CirouU OO'Uh't Q/' ..tlppeaz,,:t!}f{Jhth OircuUo
AugU5 G, tBW.)
No. 11'L , DlBTllICT A'M'ORNEys-h_ DID FEBlk
Rev. !;It. U. s. 5 824, proVides that Ii district attorney shall be allowed five dolla1'll a day for the time necessarily employed in examining, before a judge or commischarged with crime, and "fat each day of his attendance in l).court of theUnlted States, on the business of the:Unhed States, · * *$5." Section 88,1".1»',o.,V,ide',that, !'whe,n'the C,ircul,',t and, diS,t,rict, courts sit a,t t,he same time,'" he shall be ,allOWed only for attendance on one, court. Beta. that a district attorney wllois in 'attendance upon a federal court, and also on the same day, conducts the 'examination, before a commissioner, of a person charged with crime, 18 entitled to only one per d'!em fee for the day. Under Rev. Bt. 5824, providing tbat the district attorney shall be allowed "for traveling from the place of his abode to thl:! place of holding any court of the United SU\tIls in his district,. * * * 10 cents a mile for going and 10 cents a mile for returning/fl 8 district attorney in attendance on a federal court is not entitled to mileage for going to and returninll from his home during an adjournment over Sunday.
lJ. SAME-MILEAGE.
S. SAME-INTEREST ON ACCOUNTS.
A, distHctattorney is not,entitledt;Q in,l;erest on his accounts for a period intervening between the time of their allowance by the treasury department and the time of tbeir payment.
In Errol' to the Circuit Court of the United States for the District ,of Minnesota. Action by George N. Baxter to recover for services and travel as United States distppt ,attorney. Judgment for plaintiff as to some of the items of his claim, others being disllUowed. A writ of error sued out by defendant was"dismissed on plaintiff's motiqJi. See 51 Fed. Rep. 624. Plaintiff also brings error to review the judgment 8S to the items disallowed. Affirmed. : Statement by SANBORN" Circuit J This was a writ of review aJddgment ()f the United States circuitcourt for the district of Minnesota, rendered in an action brought by the plaintiff in error, who was United States district attorney for that district, from December 11, 1885, until January 11, 1890, to recover for mileal!e,fees, and emoluments, under the provisions of chapter 369, 24 St. at Large, p. 505. In the discharge of his official duties. plaintiff frequently and necessarily attended a pourt of the United States, and conducted ihe examinations before United States commissioners of persons charged with crime on the same days. He was paid five day for, in days, and in this suit sought t.o
672
RDEItAIiREPOItTEIt, vol. 51.
reCover. an additional per diem for conducting these; examinations before the commissioners on these days,for which he had received a per diem {or attendance in court. The court below refused to permit him to r&' cover,and he excepted to this refusal. Plaintiff's place of abode was Faribault, Minn·· a city about 50 miles distant from St. Paul, Minn., where the larger portion of the business of the "courts of the United States was transacted. He was paid his mileage for going from his place of abode to the place of holding the court and returning, once at every session of either of these courts; but many times during the sessions of the courts he traveled to Faribault on a Saturday evening, and returned to the court on Monday morning. There was no testimony that this travel was necessary. and the court below did not find it to be so. For this travel plaintiff sought to recover mileage in this action, and the court refused to permit him so to do, to which refusal he excepted. The accounts of the plaintiff, which were audited, allowed, and paid by the, United States during his were not paid when they were allowed, respectively, and, plaintiff sought in this action to collect interest on the amounts of said accounts from the times they were respectively allowed by the treasury department to the times when they were paid, but the court to permit such recovery. The plaintiff assigns the disallowance of,' these three claims by the court below as lilrror in this court. George N. Baxter, for plaintiff in error. EugeneG. Hay, for defendant in error. Before CALDWELL aodSANBORN, Circuit Judges; and SHIRAq, District Judge. SANBOItN, Circuit Judge,after stating the facts as abovEI, delivered the opinion of the court. 1. Where the United States district attorney is in attendance upon a court of the United StatesoD its business, and also conducts the examination before a of persons charged with crime on the same day, he can recover of the United'States but one per diem for that day. The following Revised Statutes are important here: "Sec. 823. The tollowlhg,ii'nd no other; 'compensation shaIlbetaxed and allowed to attorneys, soliciOOrs, and proctors in the courts of the United States, to district attorneylJ(C1erks of the circuit and district courts. - - Sec. 824. - - - For examination by a district attornijy before a jlldge ot' commissioner ot persons charged with crime, fivll dollars a day for the time necessarily employed. For daY' of bis attendance in a court of the United States, on the business ot thll United States, when the court is held at the place of his abode, five dollars; and tor his attendance when the court is held tllsewhel'e, fivl'! dollars for each day of the term." "Sec.831. - - - When the circuit and district courts sit at the same time. no greater per diem 01 other allowance shall be made any such officer than for attendance upon on. court." The provision of the section last cited forcibly indicates the construction should be given ¥> section 824. It would hardly be presumed in the first inetance that a district attdrneyW'()uld necessarily atiendin alcottrt of the United States"onif.$ busiliesa. and conduct an
BAXTER ". UNITED STATES OF AMERICA.
673
examination before a commissioner a.t the same time or on the same day, but it was well known to congress that the circuit and district courts were frequently sitting at the same time, in the same courthouse, and often in the same room; hence, out of an abundance of caution, they provided that, if the attorney necessarily attended both these courts on the same day, on the business of the United States, he should rel:leive but one per diem. This provision certainly raises a strong presum ption that it was not the intention of congress to allow the attorney more than one per diem for the same day in any case. But it is urged that the per diem for attendance upon the court is a compensation for the loss of time, and is earned by simple attendance, when no actual service is performed, while the per diem for conducting the examination of persons charged with crime is a compensation for services actually rendered, and that, therefore, it is not inconsistent with the statute to permit the attorney to recover compensation for attending court and losing his time, and for examining a prisoner before a commissioner and saving his time on the same day. The statement of the proposition is its own refutation. The theory and purpose of each clause of the statute is to pay the district attorney certain wages for the use or loss of his time for a single day. The compensation in each case is measured, not by the character of the service rendered, or by the value of the results attained, but by the length of the time occupied; it is five dollars for one day. To hold that under such a statute the district attorney could recover $10 for the same day, $5 for its use or loss in the court,and $5 for its use before a commissioner, is not warranted by the letter of the statute, and would be a clear violation of its spirit. Fletcher v. U: S., 45 Fed. Rep. 213, 216; 9 Op. Attys. Gen. 292. 2. Where a court of the United States is in continuous session, and a district attorney is necessarily in constant attendance thereon on the business of the United States, he cannot recover mileage for travel in going from the place of holding court to the place of his abode, and returning again to the place of holding the court, on adjournments over Sundays or legal holidays during such continuous session,· although he actually performs the travel. Section 824 of the Revised Statutes provides that the district attorney shall be allowed "for traveling from the place of his abode to the place of holding any court of the United States in his district, * * * ten cents a mile for going and ten cents a mile for returning.» The act of congress of February 22, 1875, (18 St. p. 333,) provides that "no such officer or person shall become entitled to any allowance for mileage or travel not actually and necessarily performed under the provisions of existing laws." It may be conceded that where, during the term, the court adjourns over one or more juridical or business days, the district attorney, whose constant attendance is required during the session of the court, may, at the adjournment, go to his place of abode, and again return at the reopening of the court, and that for this travel he may be allowed his mileage. This is the effect of the decision in Harmcm v. U. S., 43 Fed. Rep. 560-566; and it is not unreasonable, because, where the continuous Seg.· v.51F.no.l0-4.3
,'.
:
I
,vol.. 51,. ,
lintervt1ning t;M:oIDoaI'$ of:tPet :ppur:t the ,right to retUl1Q to tbe.ill ;pJacaa there pursue theiro.rdinary avocations, until c()ui"t, I.\gain openS. ,Ia B!J,ch .,cases. thE! distf!ict. attorneys are not required,wia.wait in ,Wlooess reopening of the; cOl,lrt, and the oourt('; m.ywellt>rel!lume that it i$MC6SSllty thattheyaQQuldreturn to their day in the active tJ),Elh"pr<:>fefl:sion.' ,::"",1 c : ' . ,o·i" . But thisfule has no appljcation" to ,ltn adjournment over ·. S!-lQh M"adjoUrnment.isiQfthe'Sa.,me,na,tureas an aQjournment over night. ba.vei gone 1 to his place Qfaboge every eVenil)g and rebu1i H: [Would hardly be.. claimed that. a trip of l{)O night, (Af:aQtlUdly taken,wQuIJ1have been necessarily, ta.}l:en thewght in Faribault rather lilo,evidence in this .,case that it was neces· sQ.l1yiQfEftlaililititf to gq ,lwery, SaturdaY,ni,ght when he knew he mlUStd;lltrmJ8t.J?aul tnQrning" and the court be-, d.eclined w,: find tJ:Hf existence oti s;uch ty. BeMondaytnorning there was no intervening to. secu},arpursuits,andthe only conclusion tblVt dr.a wn fromtberecor<ll 01\ the findings of the cou.rt below is that, t:1)e; to,:F$idMulteaohSatur,day night, and returned each morning. beoouse more pleasant and agreeable to him to Iij;llUui<his13uJ;ldays"·llt)wme thanJn, St. Paul. ; stat\lte, does not authorize the. allowance of mileage to the to. go from the place of holding court to his place of abode Md' return" anQ. eacbof ,the trips whose mileage was disallowed thia At, the commencewent of each trip the district a,ttorney,was at the! pIMe ,of the. court. He had charged for and mileageJor traveling from his place of abode be in attendance upon it. The session every juridical day. His official busin(lSSWaalJlOt completed, but required hi/'! attendance upon. the next !llloS, whep,' for bis owncornfort aQd convenience, he tra .Away,Jrotn .the place of holding the, court, remained over Sunday..,,$,nd then·:t'etlM'ped.Clearly,mileagedor such travel cannot 3nd oughtnotto. be.llllQWfld.1 because it was not neoessarily perfonned in the dis<;Jh!l,rge:ofthe, dut:i e8 of. his office, because ther.e was no provision of the.statu!:,EtElqauthoriz1ng,theallowlu/ce of mileage for travel from the place of holding: co,,;,u'ttQtba, (iiS.triQb place C)f. abode and return, and lJecaus6, to', aUtlw. it. itl:,th1s day, ,when ,a night's ride of many miles is easy of :and (lvep $gre.elj.ble, would soon lead to great lthuse8.·· Wh¢:\,e there,ie:nC) the court over intervening juridiQal: ,the term ,a attorney is entitled to mileage for traveltf.J;QJlll :'hi$ plaoe of aQodeto the:place of holding the court, and for l1eturpiUi:(otherefrorn tQ"bIs place of abode, once,and once only, term. of the courthtl attends in thedischarg!.l of duties. 4(>1ilIl'h4
sion:of
.ohby contract to pay intetest; ,and in the absence poqecan xecoveret;l against,the accounts or claims against it, although they an&,hfl\'8',been"allowedbythellreasury department. U. S. v. Bayard, 260, 8 Sup. 'Ct. Rep. 1156, and authorities there cited; TilTiJcJny, U.S., 100 U.S.43;,47. 'INotonly was there no stipulation to Miinterest on the part orthe,tJnited $tates,anq no statute izing its payment in the case at bar, but when it 18 considered that, £Qe act of congress which permits the maintenance of this suit against the United States gave, original thereof t,o t):1,e courtof claims, and concurrent jurisdiction to the court below, section 109,1 ()f the Revised Statutes, in effect, prohibits the allowance of any interest upon such a claim as plaintiff's until it is reduced to judgment. That section reads,: "No interest shall 9:e alJmyedona,nY claim up to the time of the renditiOtl of the judgment theretor by the court of Claiins, unless upon a contract expressly stipulating for tbe payment of interest." The is that the court below committed no error in the rulings of which plaintiff plains. and the. judgment below ,is ,affirmed. 3. In of any
STANDARD
Co. v. No. 2.727.
OsGOOD
et
at.
(Circuit Court, D. Mass/lchusetts. June 3D, 1892.)
PATBNTII FOB INVENTIONll-LutlITATION OF CloAIM-COMBINATION-FoLtHNG BEllS.
Claim 1 of letters patent No. 397,766, issued February 12, 11>89. to Lyman W. Welch, for a folding bed, covers a combination whereby tbe bead of the bed is carried in suspension by means of cords running over pulleys attached to the uprigbt casing, each cord being fastened at one end to a lever crank, which is pivoted to the bed rail and attadbed at its lower end to a rod running to the leg of the bed, Whereby the legs are folded downward as the bed is raised, the head of the bed meanwbile sWinging inward and downward as the frame is folded up. Held that, as this method of transmitting an eccentric motion to the legs is common in the arts, and as there is little novelty in suspending instead of supporting the head of the bed, the claim must be strictly limited to the combination in detail, and is not infringed by a bed w1;lich is supported at the head by rods fastened at their upper ends to the uprightc8sings, pivoted below to the bed rail, and projecting downward and connected at their lower ends to the legs of the bed, so that the resultant motion is like that described in the patent.
In Equity. Bill by the Standard Folding-Bed Company against CharlesE. Osgood and others for infringement o{letters patent Nos. 311,623 and 397,766, issued to Lyman W. Welch, February 3,1885, and February 12, 1889, respectively, for folding beds. Decree disIllisl:ling the bill. At the hearing the issue was really upon claim 1 of the later patent. As to the feature covered by this claim the inventor says: ' "The object of my present invention is, in part. to prOVide the foot of the bed with automatically operating IE'gs.-that is to say. with legswhie;h automatically fold in wllen tile bed is,. turned up. and which automatically turn out into position to serve as suppu'rts when the bed is pulled down."
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