F)j)))ERAF.
aEPORTER, voL 38.
'the officers rdr aetion hpon it, the' actronof the court' irl appr(l)ting'the,&C()ount is final; and 'it also seell1seqtially clear ,that where theaccotinting officers,whoha.ve the 'right of revision under the statute have accoUnt, by the coutt; and the accounts nave beenpaidjttnatisa final Rct,and the officer whose accounts are thus approved: paid cannot afterwards be: called upon for repayment. li'rOlll a.ny,rieW: I have' been 'able to take of this question, or that has been claim of cbuhl have no possible standing except upon'the ground of fraud or palpable mistake, and I cannot see how fraud or mistake: can be insisted on as to these attorney and sal fees, :lis:thestatutegivesthetinqualified right to the attorney's fee of $20 in each jury case, and the right to a counsel fee not exceeding $30 in each jhry case,-"-the amoullttobe allowed' for the counsel fees being left to :thejudgment or discretion ofsome one, either the jndge who tried the casei oT.'the accounting' officers, or each in turn; and when the discretion has"been exercised by thesy officers, and the acconnt paid, that must end the 'right of the government to question the right of the dis"It seems to me palpably unjust to the trict attorney to the plaintiff to refuse payment of these claims on the ground of this assertion of the right of set-off here set tip. The issue is found for the plaintiff. ' '" ,
HOYNE "'. UNITED STATES.
(District OOU1't,N. D. lllinoil.
April 29,,1889.)
lil;
Act Congo Aug. 4, 1886, does not take away the right of commissionerBto receive docket fees from and after its passage. but only excepts their-.payment olIt of the appropriation made by that act. Following Rand v. U. H., 86 Fed, aep, 67l; BeU v. Sam8, 35 Fed. Rep. 889. '
FEES.
,
8.
Rev. St. U. S. § 1014, clothes the commissioner in each state with the generalpowers and authority- given to committinl(' magistrates thereof; and. as committing, magistrates 1D Illinois are by Rev. St. 111. c. 38, §§ 356.358, 367, not only authorized but required to issue warrants for the comm,itment to jail of persons charged with crime pending adjournments of the examination, in default, of bail, the circuit court commissioner in that state hiLs the same power,anQ.,is, entiped to $1 fAe for such awarranti as are alBo clerks of court by Rev. St. U. S. Ii l:l28. ' , 4. SAME-TRANSCRIPT 011' DOCKE'f. . ' , ' ,. ....' , Rev.' St. U. '1014,makes' it the duty of the, c'ommissioner, in' all Cases he hQlQ.s a, person to bail on a criminal charge, to return to the clerk , ofcourt,cppies, 'of the proc,ess aDd recognizlbicea of the wHnessesi as these would'be'useless witbout such a transcript of the docket entries as to make them dntelligible. the commissioner is entitled to fees for such tran· aCJ;ipy!i, accounting officers cannot assume arbitrarily that four folios therefor. There being no specific provisioll by act of congress, he shoold receive the reasonabltl fees allo'Wed bythestiLtelitatutes.
SAME.,...FEES,lI'OR WARRANTS.
"H,OYNE. tI. UNITED STATES.,
543
At Law. Suit by
J.A.. lJald:win" for petitioner. W.G.Epnngl' U.S. AUy'.
Hoyne for feesas.cGurt commissioner. .
BLoDGE';I.'T, J. Thisie a Buitbrought by plaintiff pursuant to the ju.risdictiQIl<confer;l.'ed on this 'court by the, second section of the act of eutitled",An act to provide for the bringing of suits against oOhe Uriited States." The claim of the plaintiff amounting to $505; ,fees for the issue of mittimuses, or wll.p:al,lts of commitment, where the defendants were committed to jail ,pendiQg, or $I ul'ing the, cpurse of.. an examination on.· criminal charges', $Hh6q per dienl$ "for hearing and deciding on: criminal charges," $10 i :foris!luing ll,upliQl1te warrants, $2; for allege!l excessive folios of transcripts and commitment Qf persons, to be filed with 'the clerk of the court, '.11.05 i malting a total of $546.70, all which fees plaintiff cla.ims to .ba\7eearne9 while acting as cirGuitcourt commissioner, pursuant to the in the 'examination of charges preferred against-divers persolls· against the UnitedS.tates under the criminal laws ,tbereQf. 'l,'he proof,in the case shows withoutqu.estion or doubt that the ;plaintHl'1 during the years 1886, 1887, and 1888, was a circuit court appointed Md acting in this district according, to law,and,:that, as such, divers -persons were brought before him, charged ,dp-e form with violations .ofthe criminal and, peual laws of the United OIl iW.hich cQ,arges examinations.were duly had, and that plaintiff, in the due course of the' pel'formance of his duties as suchcommis!lioner, <)f eaph case, in whieh nothing was· entered .wlU! necessary to properly show the proceedings had i and ,that he issued warrants for the temporary commitp£ qertainof the ,pefendants to jail, where they could not furnish a or bail7'bond, pending the examination from day to day of Suqh-cpargesi and that as he was actually employed and deciding on criminal charges" for the two days charged, furt.her shows conclusively that the two duplicate warrants charged upon the request-of the district attorney, in whose judge ,the olthe government required that a writ should he in tile hands ,of two different officers in order to insure the speedy arrest, of $edefenqtj.Dt.The prooffurther shows that the transcripts charged for ;were filed ,and that they actuaJly contained the number of folios and that they contain no more folios than seem to be requiredin ellCh CRse respectively:. ,The docket of the plaintiff, kept by him. as such commissioner, isip.tro.duced in'evidence, and in all respects appears to have been such a dQCket as he ought to have kept for the purpose of making acorrectreco,rdof his proceedings. I have no doubt, there1;'Qre,from thepropf, thaUhe docket fees charged have been fully properly earnedl:>y the plaintiff. The defenses interposed are: ' 1. That a,s to.$153,of this charge, (ofwhich$136isfor docket ,fees, $6.30 for wllorrants for temporary per diem, and $5.70 excessive {oli9\! in transoriptsandcomplaints,) the same accrued and had
.m
and
Fl1lDERl\.L REPORTER;
vol. 38;
beenrej.ected by the department prior to the passage of the act of congress giving this court jurisdiction in this class of cases; and it is therefore urged that this court has no jurisdiction to pass upon this $153 of the plaintiff's claim. And in suppo!.:t of this defendant relies the case of Blisa v. U. S., 34 Fed. Rep. 781. After a careful consideration of the statute- in question I must say that I see no force in the objection to the jurisdiction of the court. There seems to be no reason, either in . the express or implied provisions of the law, against the court's having full power to pass upon and consider claims which accrued before, a8 well as those which have accrued since, United States courts were clothed jurisdiction to hear and determine them; and I think the reasoning of the circuit court for the district of Connecticut in. Stanton v. U. S., 37 Fed. Rep. 252, in which the jurisdiction is sustained, is much more satisfactory than that in the case of Bliss v. U. S. 2. That by the express·terms of the provisions of the deficiency act of August 4, 1886, (24 St. at Large, 274,) all right of Clon'lmissioners to docket fees is· expressly repealed, and hence no docket fees can be allowed to plaintiff which have accrued since the passage of that act. This question has been fully discussed. in Bell v. U. S., 35 Fed. Rep. 889; RaJnd v. U. S., 36 Fed. Rep. 671, ih both of which cases it was held that the sole effect of the clause cited from the deficiency bili of August, 1886, was to prevent the application of any of the proceeds of that appropriation from being applied to the payment of docket fees to commissioners, and this seems to me to be the reasonable and proper construction of the law upon this point. 3. As to the items in this account for the issuing of mittimuses, or temporary warrants. The objection made in behalf· of the government is that the commissioner has no power to issue such warrants, and hence the government is under no obligation to pay for them. Section 1014 of the Revised Statutes of the United States clothes the circuit court commissioner in each state with the general powers and authority with which committing magistrates are clothed in the states where such commissioners are acting, so that, in order to ascertain what are the powers and duties of such commissioners, we are referred practically to the statutes of the state, and an examination of sections 356, 358,·367, c. 38, Rev. St. ill., shows clearly that a committing magistrate in the state of Illinois,acting upon a charge against a person for the commission of a criminal offense, is not only authorized, but it is made his duty,to issue a. warrant for the committal of persons so charged to jail pending an adjournment of the examination or hearing of the case, if bail is not furnished. And section 358, above quoted, expressly requires the committing magistrate to make an order in writing for the commitment of the person charged with the offense, in case he is unable to give a recognizance for his appearance at a future day fixed for the further hearing or examination of the case. And by section 847 of the RevisedStatntes ¢ the United. States the commissioner is allowed for issuing any wartant or writ the same compensation as is allowed to clerks for like services; and the clerk's fees are,· by section 828 of the Revised Statutes,
HOYNEV. UNITED STATES.
545
fixed at $1 fo( each writ. It therefore seems to me that the commissioner has properly charged the United States with a fee for these warrants for temporary commitment, and that the fee for such warrants is the same as allowed to the clerk, which is $1 for each warrant. 4. The item $10 for per diema, "for hearing and deciding criminal charges," two days being charged for at $5 per day, has been disallowed, apparently in the belief that the services charged for were not actually performed; but the docket of the commissioner,as well as the other prouf introduced at the hearing, leaves no doubt that this item is properly charged. 5. The item of $2, charged for duplicate warrants, has been· disal· lowed, presumably upon the ground that but one warrant was necessary j but the proof in this case establishes not only that it was the opinion of the United States attorney, who ordered the two duplicate warrants charged. for, that the interests of the government demanded that two' should be issued, but, upon the state of facts shown, I am satisfied that they were required in the two cases charged for, and the charge therefore is proper. 6. The remaining item of $11.05, for transcripts and complaints, . which has been disallowed by the department upon the theory that four folios were sufficient for a proper tra:lscript, seems to me to be a proper charge, because by section 1014 it is made the duty of the commissiorier; in all cases where he holds a defendant.to bail on a criminal charge, to return to the clerk of the court copies of the process and recognizances of the witnesses, which would be useless unless accompanied by such a transcript of the docket entries as to make them intelligible. It being his duty to return this transcript to the clerk, a fee for doing it would seem to follow, and, in the absence of any specific provision by act of congress as to the amount of such fee, the commissioner bas charged the rate allowed by the state statute, which, by analogy, seems to be a reasonable and proper charge. The imiount here charged is at the same rate as has heretofore been allowed by the government in the same class of cases, and the amount here included is simply what has been disallowed by the government because of being in "excess of four folios," it having been assumed by the accounting officers, arbitrarily, that four folios were sufficient for a transcript. The testimony shows that these charges are for the actual transcripts filed, and, as the transcripts do not appear to be any longer, or to contain any more matter, than is necessary, I think that the disallowance was improper, and I find that the charges arelegitimate. . A finding may therefore be entered in fuovor of the plaintiff for the amount claimed,-$547.20. v .38F.no.7-35
FEDERAL'REfORTER,
vol., 38.
·'. FLINT
et al. "'.
HUTCHINSON SMOKE-BuRNER
Co.
«(hiro'Uit Court, E. D. Mi88oUN, E. D. May 4, 1889.) COURTS-JUltlSDICTION OF STATE COURTS-SLANDER OF TP'LE TO PATENT.
The state courts have jurisdiction of a bill alleging that complainants are the , owners ofa patented device: that defendant owns a similar patent, and has published, and is about to publish,:a notice that device is /1,n . Infringement of defendant's patent; that such publication is false. and known by defendant to be false; that it is made maliciously, and with intent to injure complainants' business; and fraying an injunction to restrain such furtber publication. Th.e question 0 infringement is not the sole, nor even the pri.Ilcipal, i,ssue in such case.
InEquity,:,' On application for 'preliminary injulwtion. . The bill alleged in st,bstance tha,t complainants were the owners of a patep.t for a cel'tain device; defendant was also devices; that the the' proprietor of several Plttents for defendant had published a notice that the device c()nstrqcted l>y the complainants was an infringement of defendant's patents; tha,t the statement 80 made was false, and known to, the defendant to be thepublicationwas made maliciously, and with intent to in,the compl/linants in,'their business of mariqfacturing and selling smoke-preventing devices. . It further averred that defendant was about to send out other similar !;lotices to customers of the coniplainants; and" in view of the premises the bill that an fujunction might issue L ' " to restrain them from so doing. Paul' BakeweU, for. complainants.' , Jarne8"/.J. Blair, for defendant. , .
;
THAYER, J. is clearly a bill to the of a libel that injuriously affects businesEI. It is averred that the notice.aent out by the defendant is false in that it states that the; smoke.copsuming device made by Flintis an infringement upon letters patent granted to Hutchinson; that defendant knew the statement, to be false, an,d willfully and rnaliciouslysent it to 011e of complainants' tomE;lrs ,with intent ,to injure complainants. Unquestionably cour!&have jI;Irisdiction of such suits, unless the fact that the statemellt rnad,e w:ithr:eferenpe toa patentEldarticle ,deprives; the state .andv.ests it jn the federal cOllrt. ,.1R that fa,ct sufficient to oust. the state court of jurisdiction, and vest it in the federal court, although citizens.of Missollri?;"J think not. The wrong complained of consists in the intentional publication of. a statement known to be false, with intent to injure complainants' b'l],siness, wh,ich statement has a natural tendency to work such injury. The right of action does not grow out of the patent law, but is given by the common law. Benton v. Pratt, 2 Wend. 385; White v. Merritt, 7 N. Y. 352; Townsh. Sland. & Lib. § 206, and cases cited. That the statement made affects the sale of a patented device is purely accidental. The right to sue