5&0
I'EDERAL REPOB,TER, "
vol. 43.
HARMON'll. UNITED STATES.
(Circuit Court, D. Maine. September 23, 1890.) 1. CLAJN.S A.GAINST UNITED STATES-ALLOWANCE-COMPTROLLER'S DECISION.
Act Congo March 3. 1887, c. 359, (24 St. 505,) § 2, /lives the circuit and district couns concurrent }.urisdiction, within' certain limits as to amount, of all mattel's which by section 1 'the court of claims shall have jurisdiction to hear and den including allolaims founded, on any law of congress. except for pensions, or on any contract with ,the government: "prOVided, however, that nothing in this section shall be construed as giVing to either of the courts herein mentioned jurisdiction to hear and determine claims * * * which have heretofore been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same. n By Rev. E!t. u. S. § 269,.it is made the duty of the first comptroller o,f the treasury "to supenntend the adJustment and preservation of the p,lblic accounts, SUbject to his revision. n Section 191 provides that "the balances Which may from time to time be stated by the aUditor, and certified to the heads of depll,rtments the commissioner of customs, or the comptrollers of the treasury, upon the settlement of public accounts, shall not be subject to be changed or modified by the heads of departments, but shall be conclusive upon the executive branch oftha gevernmel1t, and be subject to ,:&vision onl;l' congress or the proper courts. It Bela, that the proviso must be limited to a reJection of a claim, or an adverse report thereon, by a court. department or commission which determines the rights 01 parties, and therefore the disallowance of, a marshal's account for feell by ,the first comptroller of the treasury.was not within the proviso, as his decision was conclusive only within the executive department. A marshal is entitled to be reimbursed for money paid, with the approval of the attorney general, to whom Rev. St. U. S. § 368, gives general superVisory power over the ,accounts of the court oftl.oers, on'a requisition of the district attorney, for blanks for the necessary use of the district attorney. "
,2.
UNITED,B:l'ATEB
8. SAHE-MILBAGE-ATTENDING COURT.
4:
Under Rev. St. U. S. §,829, cl. 24, allowing a marshal "for traveling from his residence io the place of holding court, to attend a term thereof, 10 cents a mile for going only," the marshal is not restrictedto a single travel at each term; but, where court adjourns over one or more days, he may return home, and charge travel for going to attend the term at the day to which it is adjourned. He may.also charge travel for going to each special term.
SA.ME-SERVING PROCESS.
Rev. at. U. S. § 82\1, c1. 25, allowing a marshal" for travel, in going only, to serve ally,process, warrant, attachment, or other Writ. including writs of subprena in civil or criminal cases, six cents a mile,to be computed from the place where the proceSS is returned to the place ·of service. or, when more than one pe,rson is served therewittt, to the place.of service which is most remote, adding thereto the extra wpicli is necessary to serve it on the others," and providing, "But, when IDore t,bll ll two writs ofa,nyklnd required to be served in behalf of the same party on the same person might be served at the same time, the marshal shall be entitled to compensation for travel' on only two of such writs," where the marshal serves several precepts against different persons for different causes, he is entitled to full travel on each, though they are all served on the same trip. ' '
5. .
SAHE-Tr.A.NSPORTATION OJ' PRIaONIl:R.
The claUSe afthe fee-bill allowing for travel in going only as a oompensation for actual travel in and retQ,rning beinK independent of the clause allowing fees for transportation of oftl.cer ,and prisoner only while the oftl.cer has the prisoner in cUlltoaYi he is entitleq botb. to transportation for himself and prisoner and to travel in going to serve a warrant of remQval or warrant to commit. Wl\lTS. :' " , .
6. BA.!II;E-.8EltVING
ActCong. Feb. 22, 1875, c. 95, II 7, atter making certain provisions for the allowance of the accounts of attorneys, marshals, and clerks, fur·ther prOVides that "no SUch olliCllr or to .a!lovrance for lDileage or travel not actually anll. necessarily performed under prOVISions of existing law." Held, tbat the act did not preclude a marshal from full mileage ,on each of.two of ·more writs served at the same time and place on different persons. but applied only to cases in which there was no actual travel, as where a writ was Bent through the mail to be served by a deputy near the place of service.
HARMON fl. UNITED STATES.
561
'l.
SAME-FEES-SERVING WRITS;
The marshal's duty to serve, and right to compensation for the service of, precepts which are agreed to have been "duly issued by the court or a commissioner. in accordance with established usage, "cannot be affected by the opinion of the comptroller that the issue of such precepts was unnecessary. The hire of hacks to transport prisoners to and from coun being agreed to have been in accordance with the usual practicel and to have always before been allowed, it will be presumed to have been required Dy the court for the prompt dispatch of business. Under Rev. St. U. S. § 829, cl. 28, allowing a marshal for attending examinations before a commissioner, and bringing in, guarding, and returning prisoners charged with crime, and witnesses, two dollars a day, and for each deputy, not exceeding two, necessarily attending, two dollars a day, " the number of ofllcers necessary to preserve order, not exceeding the marshal and two deputies, is a matter to be decided by the commissioner in the honest exercise of his discretion. . The examination by a commissioner of a poor convict, on his application for discharge from custody, under Rev. St. U. S. § is a proceeding in a criminal case.
8.
S.UIE-TRANSPORTATION OF PRISONERS-HACK HIRE.
9.
SAME-ATTENDING HEARING BEFORE CoMMISSIONER.
10.
CRIMINAL LAW-EXAMINATION OF POOR CONVICT.
Edwa,rd M. Rand, for petitioner. Isaac W. Dyer, U. S. Atty. Before GRAY and COLT, JJ.
GRAY,J. Thisisapetition under the act of March 3,1887, c. 359, (24 St. 505,) to recover $1,770.60, fees and disbursements of the petitioner, while marshal of the United States for this district, from March 9, 1886, to October 1, 1888, which were included in his account presented to the district-court, proved to its satisfaction by his oath, and approved by that court, and forwarded to the first auditor of the treasury;and by him to the first comptroller; and disallowed by the latter, and are set forth in detail in schedules annexed to the petition. The United States, by a plea in the nature of non assumpsit, put in issue the petitioner's right to recover. The United States filed the following admission in writing, signed by the district attorney: "In the above-entitled cause it is admitted on behalf of the respondents that the Rervices eharged in the petition and schedules were actually rendered. that the disbursements charged were actually made in lawful money, and that the sums charged as paid to witnesses were actually and in every instance paid upon orders issued in due form. either by the court, or by a commissioner , of the circuit court, in the respective cases." The counsel for both parties signed and filed the following agreement and stipulation, entitled" Agreed Statement of Facts:" "In this case it is hereby stipulated and agreed as follows, viz.:" "First. As to jurisdiction: Of the total amonnt claimed by the petitioner. items amounting to $140.32 were disallowed by the first comptroller prior to March 3. 18157. "Second. As to the items claimed: They are correctly classified and set forth in the abstract of schedules annexed to the brief of the petitioner. the substance of which is as stated below. "Third. As to the several classes of (1) Distributing 'f)eni1'es, paid constables, $20. Said' amount was so paid; (2) Distributing 'f)eni1'es, marshal's fees, If the marshal is Imtitled to a fee of $2 for each 'f)eni1'e dis,tributed to the several, constables, he is entitled to the amount claimed. But it is claimed by the respondents that said amount was erroneously charged in v .43F.no. 9-36
FOOERA,L REl'ORTlilR"
vol. 48.
the marshal's account as mileage. and was for thatteason disallowedby,tbe S, attorney. $14', UpO" requisition S. t116. attorney this amount was paid By the marshal for blank,indiotment& andinforlilatiolls for the necessary use of the U. S. attorney. A sim.i1archarge has since bel>nallowed by the cO/PIr MarShal'!! travel to attend court, $156,60. Of ·the amount is fndra.vel to attetld terms of the circuit and district courts; 'ana one travel,' $1.80, has been allowed and paidtotlie marshal for travel at each of said terms. ,Sllid is charged for trarel o,n days when saidc0urts.'wei'eheld byadjpurnment over aninter:vening day, and were not days. T1)a remaining sumo! is charged for travel spedal,conl"t& or special district, court. The docketofthe·districtcourt.anow8 that said twenty-ollespeciaicourt& or special terms were dul)' held. (5) Expensesendeavoriilgtoarrest, $4. Thischarge fO,r ,t\\,o dliYS at $2 was disallOWed by the comptroller,solely because he claimed in the, . 6) '£ravel to $227.60. In some Instances the officer had In IllS hands for servICe sevl'ral precepts against different pet'sons for different causes, /lnd made serviceoftwo or more of such precepts in the course of one trip, making but one travel to thES most remote point of service, but charging full travel The folitem, viz., '1886, April 24. In U. S. travel to serve sl1bprena from circuit court, MaslIachusetts district, at Cranberry Isle, 314,ml.1es.$18.84, 'i Is by thfl, comptroller because the only actual travel was ftolIl Portland to Cranberry tsle, say 206 miles. If travel as charged is t'ob'e allowed, then thIschal'ge shoulli' be for 206 miles, $12.36. In servinga'warra'l1t of removaf (in e\"ery instance within this dIstrict) or warrant to,commitjthe 'niarahal bas charged travel;whlle the comptl"Oller claims transp,ottationof olli,qer a)l.d,pl'isoner beiogallowed, no ,travel can be Qharge9. of prw:epts. $63. The, precepts were dulY issnedby or a in accord!\l1ce with established usage. 'It is claimed by the ('omptroller 'that the issue ot,such precepts was Unnecessary. of 6fflcerand prIsoner, $31.30; . Of· thIs amount $31.1(hvas'fonhe transportation' of several pl'isoners, at ten cents a mile for each. 'The remaining snmof twenty cents was for transportation of. the officl'r in charge of a prisoner, ten cl'nts a mile:on two different daYs. (9) Transporting prisollers to,and froqI court, .amount was paid for ,1lack hire in,accC)rdance ",ith, theusllal practice, and the charge The that the was ,tlIeuse ot. hacka (1O) Att,endance before, commIssiOner, ' $144. T.\Vo, attended in some cases before a comm"issionerupontheexamination.of a peraon'<:harged with crime or a poor convict. The comptroller claims that the attendance of more than one officer Wa!lunneces3I'y; and that itt:tbti cRse of poor convict bearings under Rev. St. § 1042, no attendance is to be; ,allowed, as they are not persons' charged with crime. (11) .witness fees paid, $836.10. This point is covered by the adfiled in Lllis. case. .' . . . ;" p:ourth.¥ allegatioojlin the petition,; The marshal dqlyrendered his accounts as stated, and the saIDe were duly presented to the court and ap,proved, a.nd(orwardedt(}.theaccouuting <>f!lcers of the treasury, as alleged." , :This court, pufsuitntto sel:Jtion 70ftheact of March 3, 1887 ,c. 359, under which,this ,is filed, (24 506,) specifically finds the ff!.¢ts as aqmitted and agreed, and states, as a conClusion of law. the whole of thepetitiQner's excepting .the sum of $6.48, paJ.':t ,ofitem6 s must,be allowed. for the following .rel1sons:, . ',I·
Q:4RMON Do UNITED STATBB.
563
The mostinterestingquestiol'l in the .case is court has jurisdiction to pass upon those items·of the claim, amountillgto $14;0.32, which disallowed by the comptroller before Mlj,rch3, 1887. By section 2 of that act, the circuit and district courts of the United States are vested with concurrent jurisdiction within certain limits as to amount, of all matters which by section 1 "the court of claims shall havejurisdiction to hear and determine," including. "All claims founded upon the constitution of the United States or any law of conl!ress, except for pt'nsions, or upon any regulation of an executive de. partment, or upon any contract. e'l:pressed or implied. with the govt'rnment of the United Statl's, or fur damagt's, liquidated or unliquidated, in cases not in tort, in respect of which claims the party would be entitled to redress against the United States eitherin a court of law, eqUIty, or admiralty, if the Unitedt:;tatl's were suable: provided, however, that nothing in this section shall cllDstrued as giving to either of the courts herein mentionedjuand determine claims grOWing out ot the late civil war, and commonly I,mown as' war claims,' or to hear and determine other claims which have heretofore heenrejected, or reported on adversely, lJy any court, .department, or commission authorized to hear and determine the same." whether a disallowance of an account by the. Upon the comptroller of the treasury is within the latter part of this proviso, there has been a diversity of judicial opinion. The cirL-uit court for the eastern district of Missouri held that it was, and its decision was followed by the district court in this district, as well as in the eastern district of Missouri. Blm v. U. S., 34 Fed. Rep. 781; Rand v. U. S., 36 Fed. Rep. 671; Preswn v. U. S., 37 Fed. Rep. 417. But the opposite view has since been maintained, on fuller consideration, by the district court in Connecticut,in Georgia, and in Illinois. Stanton v. U. S., rd. 252; Erwin v. U. S., J.d. 4':'0; Hoyne v. U. S., 38 Fed. Rep. 542. The earlier.decillions are based upon section 269 of the Revised Statutes, by which it is made the quty of the first comptroller "to superintend the adjustment and preservation of the public accounts, subject to his revision;" and upon section 191, !Which is as follows: . "ThE:' bala.m·es which may from time to time be stated by the auditor and cE:'rtilit'dto the heads of departments by the commissio,ner of CIiStOlllS, or the comptrollers of the trl'asury, upon the settlt'meut of public accounts. shall not .be suhject to be changt'd or modified lJy the beads of departmeqts, but shall be conclusive upon the executive branch of tbe gov... and be subjoot to'revision only by conJ.{ressor lbe proper courts. The h ·ad of' the proper deparlrnt'nt. before signingawarnmt for Rny balance cprtitied to him b.va complroller, may. however, sublllit to such comptroller any facts ill his juugment afft'cUng the conectneRS of .suchQalance: but the decision of the cowptroller thereon shall be final and conclusive, as bereinlJefore provided." . The clallse of section 269, as to the general duty ofthe comptroller. to superintend the adjustment and preservation of public accounts subject to his revi$ion, 'ill a re-enactment ofa provision of earlier acts, reaching back to the ,foundation of the government. Acts Sept. 2, 1789, c. 12, §3, (l St·. 66;) March 3, 1.817, c.45, § 8, (3 8t. 367;) March 3, 1849, c. 108, § 12, (9 .8t.396.) Section 191 is a re-enactment of the net of Mar<ip. c.36, (15 St. 54.) Berore that act; it was settlel.l·by ')
1564
nDERAL REPORTER ,vol. '43.
a series of opinions of successive attorney generals that the action of the comptroller, or of the commissioner of customs, was subject to the revision of heads of departments. See opinion of Attorney General Stanbery, of September 15; 1866, and earlier opinions therein referred to. 12 Op. Attys. Gen. 43. The action of accounting officers of an executive department was never considered as a conclusive determination when the question was brought beiore a court of justice. Acts of March 3, 1797, d. 20, (1 St. 512;) May 15, 1820, c. 107, § 4, (3 St. 595;) Rev. St. § 3636; U.S. v. Jones, 8 Pet. 375, 384; U. S. v. Bank of Metropolis, 15 Pet.. 377, 401; 1 Op. Attys. Gen. 624; 5 Op. Attys. Gen. 650. Thes.ole purpose and effect of the act of 1868 were to regulate the business of the executive departments; to define the comparative powers of the comptrollers or the commissioner of customs on the one hand, and of the heads of departments on the other, in the perforI'l1ance of their executive and ministerial duties, and to make the decision ora comptroller, 01' of the cOlnmissioner of customs, final and conclusive so far as the executive departtnent was concerned, but not to affect the powers of the legislature or of the judiciary. 13 Op. Attys. Gen. 5; 14 Op. Attys.· Gen.· 65; 15 Op. Attys. Gen. 192,596, 626; Steam-Boat Co. v. U. S., 5 Ct. C1. 55. The act itself, after providing that the balances certified to the heads of departments by the comptroller, or by the commissioner of customs, upon the settlement of public accounts, "shall not be subject to be chal,1ged Or modified by the heads of departments, but shall be conclusiveupon the executive branch of the government," adds, in equally unequivocal terms, "and be subject to revision only by congress or the proper courts;" and the further provision, which makes the decision of the comptroller upon facts submitted to him 'by the head of a department'''final and conclusive," the legislative and judicial authority with equal clearness by the qualifying words "as hereinbefore provided." .Act of March 30,1868, c. 36,(15 St. 54;) Rev. St.§19L The judgments of the court of claims, and of the supreme court on peal from its decisions, accord with this view, and uniformly treat the action of the accounting officers as not conclusive in a suit between the United States ahd the individual. McElrath v. U. S., 12 Ct. Cl. 201, 102U. S. 426,441; Ohorpenning v. U.8.;11 Ct. C1. 625,94 U.S. 397, 399; .P#tsburghSav. Bank v. U. S., 16 Ct. Cl. 335, 351,352,104 U. S. 728, 734; Wallace v. U. S., 20 Ct. 01. 273, 116 U. S. 398, and 6 Sup. Ct. Rep. 408; Saunders v. U. S., 21 Ct. C1. 408, 120 U. S. 126,and 7 Sup. Ct. Rep. 467 . In section 1 of the act of March 3, 1887, c. 359,. the words "hear and determine" are used four times; once as applied to the court of claims, twice as applied to that court and to the circuit anddistl'ict courts, and again as applied to "any court, department, or commission." These words must be taken to be used in each instance in the same sense, ·and as implying an adjndication conclusive as between the parties,· in the nature of a judgment or award. The proviso that nothing in this section shall be construed as giving to either of the courts named/in the act jurisdiction to hear and determine any claims
HARMON". UNITED STATES.
565
"which have heretofore been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same," must be limited to a rejection of a claim, or an adverse report thereon, by a court, department, or commission, which determines the rights of the parties, such as the approval by the secretary of the treasury of an account of expenses under the captured and abandoned property acts, as in U. S. v. Johnston, 124 U. S. 236, 8 Sup. Ct. Rep. 446, or the decision of an international commission, as in Meade v. U. S., 9 Wall. 691. Moreover. the court of claims even before the passage of the act of 1887, had jurisdiction of claims under an act of congress or under a contract, and could therefore he'ar and determine claims for legal salaries or fees. Mitchell v. U. S., 18 Ct. C1. 281,109 U. S. 146, and 3 Sup. Ct. Rep. 151; Adams v. U. S., 20 Ct. C1. 115; U. S. v. McDonald, 128 U. S. 471, 9 Sup. Ct. Rep. 117; U. S. v. J0ne8,131 U. S. 1, 16, 9 Sup. Ct. Rep. 669. We cannot believe that the act of 1887, entitled" An act to provide for the bringing af.suits against the government of the United States," and the manifest scope and purpose of which are to extend the liability of the government to be sued, was intended to take away a jurisdiction already existing, and to give to the decisions of accounting officers an authority and effect which they never had before. The other questions in the case may be more briefly disposed of. Many of the objections of the comptroller appear to be conceived in disregard of the express terms of the statutes, or of the orderly and efficient ftdministration of justice, and, ifsustained, would greatly embarrass the courts as well as the marshals of the United States in the performance of their appropriate duties. I, 2. In this district, the jurors being drawn by constables in accordance with the laws of the state, the fees paid by the m.arshal to the constables for their services, as well as those charged by him for his own services, in distributing venires, are in accordance with the express words of the Revised Statutes, (section 829, cl. 3,) and with the settled course (If decision in this circuit. U. S. v. Cogwell, 3 Sum. 204; U. S. v. Smith, 1 Woodb. & M. 184; U. S. v. Richardson, 28 Fed. Rep. 61, 73. 3. The sums paid by the marshal, upon the requisition of the district attorney, approved by the attorney general, for blank indictments and informations for the necessary use of the district attorney, having been paid by the marshal with the approval of the attorney general, exercising the general supervisory power conferred by Rev. St. § 368, the marshal is entitled to be repaid those sums. 4.. By Rev. S1. § 829, c1. 24, the marshal is to be allowed "for travelling from his residence to the place of holding conrt, to attend a term thereof, ten cents a mile for going only." This allowance is not expressly, or by any reasonable implication, restricted to a single travel at term. but extends to every time when he may be expected to travel from his home to attend a,term of court. If the court sits for any number of dUJs in succession, he should continue in attendance, and is en-
J'EDlilltAL REl'ORTll:BJt Vol.
43'.1
titled to only onetraivel.. 'But j if the oou'tt il3 adjourned over one or more intervening daysl h(jlis' not obliged t6 remain at his own expense at the placeo! btit may return to his home, and charge travel fatigoing anew to attend' the termat'the day to which it is adjourned. His right to charge travel for going to each special court or special term, is,if possible, still clearer; and is scarcely contested. "'5. The charge for ei'penses in endeavoring to make an arrest was no mOl'El than the statute permits to be allowed. Rev. St. § 829, c1. 18. · '6. The general rule prescribed by Rev. St:§ 829, 01. 25, allows the marshal "for travel,' in' going I only , to serye al1y process, warrant, attachment, or other writ, including wriUlof subpcena in civil or criminal cases, six cents a mHe, to be computed' from the place where the process is returned to the plaoo'of service." The explanatory orrestricti ve pro· visions as to the case!! ot ttvo persons served with the same precept, and of more than two writs in behalf of the same party against the same person, emphasize the general rule, and confirm its. application to sev. eralprecepts against different persons for d,iflerent causes, although served at the same time.- This 'clause of the fee-bill, which allows for for actual travel in both going travel in going only; and returning, is wholly'independentOf, and unaffected by, the distinct clause allowing fees for,transportation of officer and prisoner, only while the officer has the prisoner in custody,and without regard to any additional distilncewhich he may be obliged to travel out and back in serving the warrant of arrestor removal. The UnitedStiltes rely on the act of FeLruaTY 22, 1875;c.95,§7, which, after providing that all accounts of attorneys, marshal!!,andClerks for mileage and· expenses shall be audited, allowed, and paid as if the act of June 16, 1874,c. 28.5, had not been passed, further pt6vides that" no such officer or person shall become entitledtollnj'allownnce for mileage or travel not actually and necessarily perfol'meii under, provisions' of existing law." . 18 St. 334, 72. that this last We concur .in· the ,opinion of Attorney General proviSion, which lfuatli,jestl, includ6Smarshals, does nofdeny a marshal full travel on two or morMvrits in his hands at the same time, and served at the same pluce' ondifferehtpersons,inasmuch as his 'travel is actual and necesllaryto'serve'eaehttnd everJ'o,j those writs:btit that "that provision waS intendedtoal"'\'lly to cases in which no. aetllal trl1vel is perfQl'med in servingprbceSllj as, 'for instance; where the writ is sent through the mail to be8erved bY'a deputy at or near the' place of service." 16 Op. Attys. Gen. 165, Hm. ' It follows that, by the statute of 1875, the travel to be allowed to the marshal for serving atCrlltlberry Isle a subpoonll. from the circuit'court for the district of Massachusetts must be limited to his actual within his district frolll Portland to Cranberry,IsJe, and cannotitiolude the constructive travel from Boston to Portland; amountitl/l: . td$6,48; and that:the marshalls entitled to re-, cover,the rest of the 8umecharged'fortravel to serve;precepts. 7. The marshal's :dllty 'to' serve,ilh'd right to compensation for the ser¥ice of1 precept81 which are agreed to have LeenUduly issued by the
HARMON tl, .UNITED STATES.
.56.7
court or a commissioner, in accordance with established usage," cannot be affected by the opinion oOhe comptroller that the Issue of a precept was unnecessary. 8. The fees charged for. transportation of officersa.Ild prisoners are in exact accordance with Rev. St. § 829, c1. 20. 9. The hire of hacks to transport prisoners to and court is agreed to hiive:Qeenin accordance with the usual practice, and to have always before been allowed, and must be presumed to have been required by the 90uftfor the prompt dispatch of b u s i n e s s . ' 10. The fees charged for the attendance.ofamarshal and his deputies before a commissioner of the circuit court'were in accordance with the pr9vision Of the statutes allowing "forattending examinations before a commissioner, and bringing in,guarding, and returning prisoners charged with orime, and witnesses; two dollars a day; and for each deputy not exceedingt"!o; necessarily attending, two dollars a day." Rev. St. § 829, cl. 23. Within thenllmher, thus restricted, of the marshal :and two deputies, the question how many officers were necessary to preserve order was a matter to be dec,ided by the, commissioner" in the honest exercise of his discretion, and according to the existil'lg exigency; Nt:levidence has been produced tq control the presunlption that the commissioner was governed by a due regard to efficiency and economy in the administration of justice, or to afrect the weight of the approval by the district cOurt of the charge for these' services,' upon satisfactory proof by the marshaHs oath that they were actually and necessarily Act Feb. 22,1875, c. 95,§ 1, (18 St. 333.) , The duty of the marshal to obey.the como'lissioner'sorder, and his right to recover fees for the attendance of .himself and his two deputies accordingly, were not dependent upon the subsequent opinion of the comptroller. The commissioner's examination of a pOOl' convict, on his application for discharge. under Rev. St. §1042, is a .proceeding in a criminal case. 'U. S. v. Jones, 134 ,U. S. 483. 10 Snp. Ct. Rep.G15. . 11. The objection of the comptroller to the recovery of witness paid by the mars.hal under order of coqrtis. in the face of the statute, which provides that "no accounts of fees or costs paid to any witness or juror, upon the order of any judge or commissioner, shall be so re-exa.minedaa to charge any marshal for an erroneous taxation of such fees or costs." Rev. St. § 846. The result is that the petitioner is 'entitled to recover the sum of $1,. 764.12jand, conl!idering the frivolous.and vexatious nature of the objections taken to the greater part of the petitioner's claim, it is ordered by the court, in the exercise of the discretion conferred by.section 15 of the act of March 3, 1887, c. 359, (24 St. 508,) that there be judgment for the petitioner for that sum, and costs.
668
FEDERAL REPORTER,
FADDEN tI. SATTERLEE
et aZ.
(C't'rcuU COurt, S. D. lowa. September 27,1800.)
1.
LIMITATION OJ!' AOTIONS-PERSONAL
An action against a ;physician for damages occasioned by his malpractice in treating plaintiff under a verbal contract is barred in two years, under Code Iowa, § 2529, subd. 1, providing that" actions founded on injuries to the person or reputation whether based on contrsot or tort," shall be bronght within two years, and tlubdivislon 4 of taat section, providing that "those founded on unwritten contrsots" tihall be brought within five years, does not apply to an action for injury to the person resull;ing1!-,olIl the breach of an unwritten contract.
lI. SAME-COMMENCEMENT OJ!' ACTIONS. . . _ Where the petition is filed on the 16th, and the summons pla.oed in the hands of the ofticer for service on the 23d, of November, 18::19, the aotion is barred where the petition allegeS that the contract was made on September 1,1887, on which. day defendants set and plaintiff's leg, and continued treating' him till November 17, 1887, and that by reaeon of their neglig.lence In setting and bandaging the leg plaintiff wall -Injured; for Code Iowa, 5 2582, declare!! an actlonoommenced at the time the writ is placed in the hands of the ofticer for service.
At Law. _ Action to recover damages. Demurrer to petition. Breen c!cDuffie, for plaintiff. Harl c!c McCabe and 0ha8. McKenzie, for defendant. SHIRAS, J. In the petition filed in this cause it is averred that the defendants are physicians and surgeons, engaged in the practice of their profession at Dunlap, Iowa; that on the 1st day of September, 1887, the plaintiff met with an accident, whereby· he fractured the bone of his left leg at the thigh; that on the date named he entered into a contract and agreement with the defendants, whereby, for a valuable consideration, they agreed to set and heal said leg, and attend upon him as physicians and surgeons until said was cured and restored to its normal condition; that the defendants entered upon said work under said contract, and attempted to set the bone of said leg, reduce the fracture, and restore said leg to its normal condition. and attended uponand served plaintiff in said work and treatment untila,bout November 17,1887; that defendants so carelessly, negligently; and unskillfully set the fractured bone, and dressed and bandaged the same, that by reason thereof the injured leg is permanently maimed and deformed, to the damage of plaintifl. The petition was filed November 16, 1889, and the summons was placed in the hands of the marshal for service November 23, and was served November 27, 1889. A demurrer on behalf of defendants is interposed upon the ground that the petition of plaintiff shows that the action is barred by the statute of limitations. The Code of Iowa (section 2529) provides tbat-
"The following actions may be brought within the timps herein limited, respectively. after their causes accrue, and not afterwards, except when otherwise specially limited: (1) Actions founded on injuries to the person or r&putation, whether based on contract or tort, or for a statute penalty, within two years. * * * (4) Those founded on unwritten contracts. those brought for injuries to property, or fOl' relief on gl'ouud of fraud in cases heretofore