51 F. 896 -

REPORTER,

vol. 51.

'the; presumption is that the grantor knewit"ifrit

a debtcrellted by him, and for the reagon that a man is prestitlled to know his own liability, but, like all other presumptions, are subjectt6 be rebutted by evidence, and are not conclusive. The questions as to whether or not these debts as stated, oran1 of them, are simUlated and fictitious, and whether or not the defendants knew, or hadrell:Sonable cause to know, their invalidity, ate for the jury, so that the 'motion asked cannot be given on the ground last stated. Had the aSsignment been executed before the issuance of the attachment, I would feelit my duty to sustain the motion and give theinstructions asked j but it .is, admitted that the attachment Was issued before the assignment was executed. To sustain the attachment on tAe ground that the assignment is in law. fraudulent, the jury must be sa.tisfied that, at the time the was issued,the defendants; or one of them, must have contemplated making the assignment. . This Inust be determined' by; the Jury· from the evidence, and therefore the motion to give to' the jury the peremptory charge to return a verdict for the plaintiffs is overruled, but the jury will be instructed as to the rules to be obserVed in making their verdict. '.

je

UNITED STATES

CCf7'C'Wlt Court, So

v.

WOLTERS

elal.

5,

IJ..

CaM;fomm.

1.

The "recei1tbig, keeping, and paying out" of money by the61.erk under an executiO>n issued .on a judgment in an action under the inter,nal Jl/.WS, {or which Itev. § 828; allows the c!el'k 1 per centum commissiou, (2 inCalif(lrnia, by section for which the government ill liable ; and . 840,) is a service rendered the . commissions areto.lJe paic:l,un!ler section 8216. through the collector of internal revenue, i/lto the treasury, as are the clerk's fees, that are taxed and included in t1ie and collected' from the defendant. U. S. v.Cigars, etc.,' Feci. Rep. disapproved.

CtllRxB oJ'OoURT-FlllEB IN REVENUE CA.SBs-How

PA.ID.

2.

S.SUIE.

skSS 889, 842,844,857, providing for the retention of fees by' 6lerks and other omeers until the maxirnumof..their compensatio>n; is reached, apply to fees other .those for which the government is responsible, and whiCh are to be paid out of the treasury undel' the P!OVillions of section
. .... . ' .

Services l'llndered the government by the clerk or other officer of the 'oourt in suits by it, for which the law fixes certain fees, render the government liable there.for, Whether it suoceeds in collecting its legl.timate costs from the defendant or not.

At Law. Action by the United States against Henry Wolters and others;. Heard on the application of the clerk of the court for the distribution money paid into the registry of the in satisfaction of a judgment in favor of the government. M. T.Allen, U. S. Atty. Ross, District Judge. In this action, which arose under the internal revenue laws of the United States, a judgment was recovered on the 19th

UNITED STATES tl. WOLTERS.

897

9f December, 1891, by the United States for the sum of 815,893.50, including taxed costs, among which were clerk's fees amounting to 877.40. Execution was thereafter issued upon the judgment, under and pUrsullllt to which the marshal collected, and, on the 19th of August, 1892, paid to the clerk of the court, in satisfaction of the judgment, the following amounts: Amount of judgment, inclndinR taxed costs. - 815,898 50 Amount of interest from December 19, 1891, to February 12. 1892, being the date· of the collection by the marshal of $2,166 87 063.02, at 7 per cent., . -. Amount of interest on $13,897.35, being the balance unpaid on 505 32 February 12, 1892, at 7 per cent., 880 Costs of writ and costs accrued since judgment, · 83170 Clerk's commissions, · ·
Total, 816,906 19 The clerk deposited the. full sum so 'received by him iIi the registry of .the court, and llOW asks that the proper order for its distribution be made. It is contended on his behalf that the 8331.70 paid by the defendants in the action as clerk's commissions should not be paid to the collector of the district, but to the clerk directlYi and that is the ques. tion for'decision It is quite .clear that the fees allowed by law to the clerk and other officers, except those which are directed to be paid out of ·the treasury, are to be retained by the officers, when received, up to the limit fixed ItS the maximum of their compensation. Rev. St. §§ 839,842,857,844. By the last section cited it is provided"That everydistrict attorney, clerk, and marsbal shall, at the time of making his half'yearly return to tbe attorney general. pay into the treasury III ... ... any surplus of the fees and emoluments of his office wbich saidreturn: shoWs to exist over and above tbe compensation' and allowances autborized by law to be retained by bim." Section 856 of the Revised Statutes provides that "the fees of district attorneys, clerks, and marshals, * * * in cases where the United States a.re liable to pay the same, shall be paid on settling their accounts at the treasurYi" and by section 3216 of the same statutes, it is declared that "all judgments and money-s recovered or received for taxes, costs, forfeitures, and penalties shall be paid to collectors as internal taxes are required to be paid." It is to be observed, with respect to sections 839, 842, 844, and 857, ffWPra. that the fees the officers named are allowed to retain until the maximum of their compensation is reached are fees other than those for which the United States are liable, and which, consequently, are to be paid out of the treasury. The commissions in question were allowed to the clerk by virtue of sections 828 and 840 of the Revised Statutes, fixing the feeA to which the clerk is entitled. Under and by virtue of those provisions oflaw, there were taxed and included in the judgment in this case clerk's fees for services rendered the plaintiff in the action, amounting to $77.40. For those services the government, at whose instance and for whose benefit they were rendered, Wtll v.51F.no.13-57

liable at :by i tre statu ta:. I.n to the ,incurred, w:hic,h, the as.the successful' )VaS entitledJo; .re.C9ver which of tAxa.tion section 828 allows the iug, paY\ng P\1t money, ill pursuance of any st,atute or order of court, one per centum on the amount so received, kept, and, paid out:" Ill, Clt1iJ?.Wia this per cent)lm is, by section 840, declared to be 2. Seqtion 825 of the same that'"7'"'." . . . u shall be taxei:IiMl'l1 'Paidlo every district attorney two per centnm lipol1 all moneYS collected 0t realized in any suit Qr proceeding arising under the r!!,yenue hiws. and corilHfeteU by him. in which the UJiited8tates is a party, Wbi¢h'1!lhall be in lieu of all' costs ahd fees in such proeeeding."
· '",1' ". ,.· , " ' , . '. . ., ""I,

in rilspect to this section, the supreme court said, in the case of S., 99 V. S. rule of compensation as Its attbrney,b)'Wlnch, when he has been sueof two per cent. lor collection. but !l'aves him bis oi'diri'al'ystatutory fee'fi1U2{), allowecl by section 824 of !theRevised Statnothing is .realized." ," not only that the gOV6frlment is liable .allowed to the district attorney, but also therefor; for it can hardly be that the d.E!fen. .,:a..n.t.,'}.".' . i.n... th.. e d , ....g.l,)v\;1rnment is successful in.. suit, can the of the district attorney; that is to be say, for docket' fee taxed arid included in the arid also for uppn. th"l, aQlount collectEld and paid in the judgment.,· The "r,eceiving, paying out" of the money received by the execution in question was for the government, not for!the!'rlefendants;,forwhich the statute referred to: declares the clerk shall be entitled to 2 per centum of the amount so received, kept, \lod paid out. Conceding that this commission was properly collected from the defendants· as Recruing costs, it is difficult to see why it is not 8emuchrequirlild to bepaid,through the collector into the treasury, to bethera disburstld, as the clerk's costs, that are taxed and included in the,judgment, and collec<ted from the defendants. It is not here contendedbutthat those .oostsJshould be paid to the collector, and by him into the treasu'ry, to be paid to the clerk upon the settlement of his acpursuant to the ,provisions of .section 856 ,of. the Revised Stat'Utes. -8ervicesremleredthegovernment by the clerk 'or ;other officer. for which the law;cleclaresltheofficer is entitled to ceriainfees, necessarily renders the government liable therefor. If it is successful in the litigation,nnd succeeds in eol1ectiog its legitimate costs froIn' its antagonist, itlis reimbursed; but: isnooe the less liable to the officer rendering it the service.· ' I llIm not unmindfuloL,tha·factthat the learned circuit and district judges for the eastern diSltrict of Pennsylvania in the case of U. & v.Cigars, etc., 2 Fed.' iooka' different view of· the question.
l:l.

to

a

I

trNt'l'id:> STATES t1. WOLTERS.'

89'9

After referring to sections S2S, 828, 839, 842, 844, and 856 of the Revised Statutes, it is there said: "The apt of July 13, lS66, (Rev. St. § 8216,) wbichprovides ·that all judgments and moneys reco\'erl'd or rl'ceived for taxes. costs, forfeitures, and penalties shall be paid to collectors as .internal taxes are. required to b6 paid,' effects no change in tbe existing la.w, except to reqUire the costfj, WlIich belonK to the government, to be paid. into II different del'artmeutin internal revenue ca8t's.'.rhese costs consist in expenditllres made by it during the progrl'S8 of suits, and tax.-d to lind rt'covert'd from deft'ndantson its account, and this, manifestly, was itB only purpuse. It does not requirl! the uffil'ers' fees to be thus paid over, and no proper object is discovl'rable for such a requirement. The fees belong to the officers, as the emoluments qf their offices."· 'l'he taxed costs inc1udenot only expenditures made by the government during the progress of the suit, such as the payment of witnesses, etc., but the legal fees of the clerk and other officers for services rendered at the instance and for the benefit of the government, for the payment of which the latter is therefore necessarily liable. Such fees of the clerk in the case now before the court amounted to 877 .40. and were taxed and included in the judgment and recovered from the defendants, and it is not suggested in the present. case that they are not properly payable into the treasury through the collector. I can see no justification for the collection from the defendants of the commissions allowed by law to the cl('rk and other officers, except upon the ground that they are a part of the costs to which the government was necessarily and legally subjected by reason of the· suit, and recoverable as costs, because not ascertainable before payment of or on account of the judg. ment. If 80, they are as clearly embraced by the word "costs" in section 3216 01 the Revised Statutes as the taxed costs. Nor do the fees or commissions of the officers belong to them without qualification. To the limit of the maximum of their compensation they do, but, when that limit is exceeded, both fees and commissions belong to the government. The government, therefore, has a contingent interest in all fees and commissions allowed and received by the clerk anll other officers referred to, and, when such iees or commissions are allowed for services rendered the government, it would seem thnt the government must be liable theretoI'. In my opinion, the entire fund in question should be paid to the collector of internal revenue for this district, and an order to that effect will be entered.

900

n:DEBAL REp()RTER I

vol. 51.

'In re

f

CARRIER

etal.

D. PennsllL",anw.. August 19, 1m.), A creditor who has attached property of his debtor within fO\lr!#onths prior to the commencement of bankruptcy proceedin!S"s is not bound, under Rev. St. §5075, toexecl:lte an assignment 01 his lien to the assignee, as a condition precedent to in.the distribution of the bankrn,Pt's68tate, when he has ,refrained from enforclDg lien inob6iiience to an inJunction from the bankruptcy court; for the ati.achment, v'oid or voidable under section 5044, does not come within the of sectIon 5075.
Oll LXWNS.

In Bankruptcy. Sur exceptions to the register's report. The former opinions of the court upon questions arising in the same proceedings are reported in 39 Fed. Rep. 193'; 46 Jj'ed. Rep. 850;47 Fed. Rep. 438; 48 Fed. Rep. 161. Exooptions sustained', and report modified. ThomMB: Alcot'n andLyan, McKee & SandetsDn, for creditor. Levi· Bird for assignee. ,BuFFING'roN, DistrictiJudge. E. G. Carrier has excepted to the report of the Tegisterin tbat:he has refused to award him $6,101.84 as adividend,upona note made ,by John Carrier, one of the bankrupts, and owned by the exeeptant. The register has found the note, was a valid debt,andGamer is therefore prima facie entitled to thedividertd. This the' registerhss failed to allow him for the following reasons: In the circuit Court of Bay county, Mich., on May 22, 1874,' E. Go: Carrier issued :an; :attachment againstJohn Carrier, by virtue of which personal anduJiealiproperty, in excess of the present claim, was attached. He IS of.opinion thlltE.G. Carrier n<.lverhaving assigned his right in said to ,the assignee,as provided by section 5075, Rev. St.; he irr this fund. Had ended here, we· must find ·theregistei"i correct;· .but there are other facts which ally change the.question.···,mhepetition in bankruptcy was fiIed,'June 11, 1874, arrd,the adjudication made June 22d; the attachment was tberefore clearly. within the four months' voiding clause of section5044j Rev. St. Whether voidable :01' void we need not inquire. If .not void ipso facto, it was without, doubt voidable, and conferred' on E. G. Carrier no against the assignee. On September 12, 1874 j pending the appointment of an assignee, Andrew F. BaUIn, a creditor of John Carrier, presented a petition to this' eourt praying for ,an injunction to restrain E. G. Carrier from prosecuting this attachment, and alleging the same was void. His prayer was granted, aud an order made as follows: ..And it is further ordered that until the decision of this court upon the said motion the said parties against whom an injunction is prayed are restrained III ... ... to abstain from any and all interference by execution, levy, sale, or any other manner whatever with the property or estate of the above-named debtor, John Carrier." This injunction was served on E. G. Carrier, September 14, 1874. He made no answer to the petition, and has obeyed it; his attorneys ir.
i