BUTLER V.UNITED STATES.
655.
til the arrival of two city fire department tugs.
The tug then towed the three vessels (the lighter aIid two steam fire department tugs) to a place convenient for taking out the burning cotton. The vl;llue of the cotton saved was $20,000; of the lighter, $3,000; and of the tug, $14,000. Held, that $750 was a proper salvage award. This award was reduced on appeal in the circuit court to $350. It is true that new evidence in the higher court influenced this reduction. It is evident, however, that the court thought that the award of the district court, without this new evidence, was high enough. See, also, The Alice Clark, 39 Fed. 621. In the light of these cases, and taking into consideration the number of tugs actively engaged in the same work and at the same time with the Emma K. Ross, we think that $250 is a liberal reward to her for her salvage services on that occasion. Let the case be remanded to the district court, with instruction to modify its decree in reducing the salvage award to this sum of $250.
BUTLElt v. UNITED STATES.
(District Court, D. Indiana. No. 5,796.
June 15, 1898.)
1.
FEES 01.1' COURT OFFICERS-ATTENDANCE AND PER DIEMS.
Rev. St. §§ 574, 638, declare that the circuit and district courts sitting in equity or admiralty shall be deemed "always open" for the transaction of certain business. The act of March 3, 1887, forbids payment of per diems or attendance fees except for days "when the court Is opened by the jUdge for busineSS, or business is actually transacted in court," etc. Held, that the clerk Is entitled to attendance fees for days between regular terms on which he is required to attend, and does attend, on the transaction !>f business by the judge. . 'When, after docket entries, Indexes, etc., have been made, a criminal easels transferred from one place of holding the' district court to another, and then discontinued in the former place, the clerk Is entitled to his docket and Index fees therefor, although the costs have not been taxed at the place to which the case is removed. Where the witnesses for ,both parties are sworn at the same time, purSUllllt.to an order of the judge, the clerk Is entitled to have his fees th,erefor paid by the gOVernment.
2.
BAME-CLERK'S FEES-DOCKETS AND INDEXES.
8.
SAME-SWEARING WITNESSES.
4. SAME-AFFmA,VITS OF INDIGENT DEFENDANTS.
The clerk Is entitled toa .fee'of 10 cents each for filing and entering af· fidavits of indigent defendants In criminal cases,on Which the court ,makes an order for summoning witnesses in their behalf. ' The clerk is entitled to fees for taking the affidavit of the marshal provo proofs are for the convenience Ing the accounts rendered by him, since and Protection of the government.
5.
SAME-AFFIDAVITS TO MARSHAL'S 'ACCOUNTS.
The facts in the above·entitled cause areatated in the finding of the court as foHows: (1) The court finds that the materIal averments of the petition and the facts alleged therein are true. ,,, " ,."., " ' (2) And ,the court finds thatNQbleC.Butler, the,petitioner, was on the filing ()f the petition; and ;now. a, Rll«:lresiden't ()f the city of Indianapolis
656
87 }t'EDERA.LREPORTER.
llnd state of Indiana, and that the petitioner was on and before the first day -of January, 1897, and has been ever and is now, clerk, of the circuit and courts of the United States for the district of Indiana, duly appointed, commissioned, and qualified, and acting as such clerk during all of said period. ' (3) And the court finds that during the calendar year 1897 said courts were open under and by virtue of sections 574 and 638 of tl)e Revised Statutes of the United States, for the transaction of equity and admiralty business therein as provided in said statutes on each and all of the days hereinafter mentioned, to wit, said circuit court was 'open, as aforesaid, at Indianapolis on January 13th, 15th, 19th, 22d, 23d, 28th, 29th, February 6th, July 2d, 24th, August 7th, 14th, 16th, 1,7th, 23d, 30th, September 6th, and October 16th, and at Evansville on October 22d, and said district court was open, as aforesaid, at Evansville on January. 1st, February 5th, June 11th, August 12th. October 19th, 30th, llnd November 2d, making an aggregate of twenty-six days; 'that on each and all of said 'days one of the jUdges of said courts was present therein for the transaction of such business; that on each and all of said days such business or some portion thereQfwas actually tranS/lct,ed in,and by sajd courts respectively; that such' business so transacted as' aforesaid consisted of orders, decrees, and rules which were made and entered in and by said courts, respectively, upon their records in equity and admiralty causes that were pending therein, and as authorized by said statutes; that on each and all of said days the petitioner was required to be, and was, in attendance as such clerk upon and in said courts, With the records of said courts at the place where said records are to be kept by him, and received from said courts, respectively, their orders, decrees, and rules as aforesaid, and their Instructions concerning the same, and spread said orders, decrees, and rules on the records of said courts, respectively, in accordance with their instructions. as aforesaid, and also the date of each and all of said orders, decrees;' andr:ules, and the name of .the judge by whom said, courts, respectively, were heldwhe,n said orders, decrees, and rules were made and entered by them ,as aforesaid, and other matters incident thereto, all of which appears upon said records for, each and all of said days In manner and form as recited and .set forth in ,a transcript of the records of said circuit colirtfor one of said days, to wit, day of, January, 1897, which is as follows: "November 1896. In Recess. Tuesday, January 19th, 1897. In Champel's. Honorable WIlliam A. Woods, JUdge. "Mark T. Cox et al. vs. The Terre Haute & Indianapolis Railroad Company. (9,395, Chancery.) '''Comes now Ftank A. PickerUl, arid files his petition herein, praying the court to authorize Volney T. Malott, "receiver herein, to pay the petitioner the sum of fourteen hundred dollars In settlement of his claim for damages for injuries, whlch'petitlon is in the words and figures following, to wit: [H. I.] And now also comes the said by John G. WiIliams;his solicitor. And the court having examined said petition, and inquired into the truth of the matters therein averred. finds that the same Is true",and that the court Is of the opinion that the prayer of said petition oilght to be granted: It Is accordingly here and now ordered by the court that the receiver herein :be 'and he is now and hereby, authorized and directed to pay'to said petitioner the sum of fourteen hundred dollars In settlement of bis !laid daim for,damagell. tlpon his executing a proper voucher and acquittance therefor." (4) And the court findS that on ,the 23d day of February, 1897, the case of the United States against Albert Wade, which was then pending In said district court and upon its dockets at Indianapolis, was, by order of said court, 'dIscontinuedat'IIldianapolls, and' transferred ,to thed1:lckets, or: Mid court at Evansville; tbat previous to the discontinuance and transll'lr, :of, :said case, as aforeslj-id/ the petitioner, as entered th!!, same upon dockets and Indexes of said 'court at Indianapolis, and taxed the costs tbereln atIndianapolis, and rendered other servicell,at..,Indiailapoli,s in,cpJ;lnl;lctloI). therewith: (5) And the court finds that on the 24th tlil.yof 1897, ,during the progress Of the trial' of the United States agaltist"Benjamin Banbard', in said district
BUTLER V. UNITED STATES.
667
court, the petitioner, as such clerk, was ordered by said court to administer oaths to witnesses therein; and in obedience to the order of said court, and not otherwise, such oaths were administered by the petitioner, as such clerk. (6) And the court finds that during the months of April, May, and June, 1897, twenty-two affidavits of Indigent defendants under indictment in said district court for witnesses in their behalf at the expense of the United States were presented to said court; and the petitioner as such clerk, was thereupon ordered by said court to file and enter said affidavits, and enter orders thereon for the attendance of such witnesses accordingly; and said affidavits were filed and entered, and orders were entered thereon by the petitioner, as such clerk, in obedience to the order and direction of the court, and not otherwise. (7) And the court finds that during the months of July, August, and September, 1897, the petitioner, as such clerk of the district court, administered eleven oaths to the United States marshal for the district of Indiana, and made and entered eleven certificates thereof or jurats in the verification of his accounts as such marshal with the government of the United States, the same being reqUired for its own convenience and protection. (8) And the court finds that accounts for the foregoing fees, duly verified by the oath of the petitioner, have been rendered by him as such clerk, accordIng to law, in and to said courts, respectively, in the presence of the district attorney for the district of Indiana or his assistant; and that the petitioner has proved in open court to the satisfaction of said courts, respectively, that the services aforesaid have been actually and necessarily performed as stated therein, and that orders approving said accounts have been duly entered of record in and by said courts, respectively, and that said accounts, with dulycertified copies of said Qrders approving the same, have been presented for audit and payment to the accounting officers of the treasury department of the United States, and ha'l;e been disallowed by them, and are now unpaid. (9) And the court finds that the whole amount of the fees and emoluments of the petitioner as such clerk in each and both of said courts during the calendar year 1897:, including the fees aforesaid, was less than the maximum amount of his personal compensation, as allowed by law.
The court. thereupon found; as its conclusions of law from these facts, that there was due the petitioner from the United States the sums of $130 for attendance, $1 for dockets and· indexes, etc., $1.80 for administering oaths to witnesses, $2.20 for filing and entering affidavits for:indigent defendants, $2.75 fOl' jurats to marshal's accounts, and rendered judgment for the total sum of $137.75 accordingly. John R. Wilson, for petitioner. Albert W. Wishard, U. B. Atty., and Jesse J. M. La Follette, Asst. U. B.Atty. BAKER, District The chief question in this case may be stated as follows: Is a clerk of a United States circuit or district court, which is, by express terms of the statutes, "always open" for the transaction of the business which is described therein, who is required to attend and attends on the transaction of such business by a judge or judges of the court under the authority of these statutes, upon days that are not within or any part of a regular term, entitled to attendance fees, under other statutes that allow such fees to him. on days when "business is actually transacted in court"? A bare statement of the question shows that it is. entitled to receive an affirmative answer, but, as a negative answer has been recently given the question by the accounting officers of the treasury, a further discussion of it seems to be neceSS&ry·.. 87 F.-42
,,'8.7 .FJIDimiAL REPORTER·. ,.i
:'The nisi'prluscourts· of States' al'e described in the statutes according to, territorial, jurisdiction .1UI'; circuit and district c'ourts; and, accordingtolithe subjeCt-matter'M theirjp.r1sdiction, as common law, equitF or cha,ncerycourts" admIralty C{)Ul'ts, and, bankruptcy courts.· A common-law court is in sessiOli durin.,g' aL regular term begun and held. at a time and place 'lliw, and (jontinue.d by adjournment until its close. It is" also in session during' a specialterni, which may be appointed by the court itself or, a judge thereof. Chancery, admiralty, ,and bankruptcyc(),\lrts.are in session during these regular and speGial ;terms, and they also sit;'.anq therefore are in session, whenever and wherever the judicial business which is.described in sections 57:4:,: 638, and 4973 of ,the' Revised Statutes, and in section 16, Act FeK 4, 1887, is actually transacted by one or more of the judges of these courts. In.all onhese cases, when a' court is in sessionduringa regular or speCial term, or when it is in session by reason of the tmnsaction of business under the sections aforesaid, it is equally necessary that its clerk should be in attendance upon it, with are kept by him, to receive its records; at the place where the the orders, decrees, and r,ulesof the court and concerning them. If no business were transacted ata regular Qr special term,hisattendance would be necessary; and it is:always necessary wheJ?transacted ilIar! b,Y,: th,e .court. It provIded by the act of congress a,PPJ;C)ved February 26, 1803, and section 828, Rev; St., that for such attendance a clerk ,should have a fee of "five dollars ij/ day." clerks were allowed ;for their "attendance" only, without reference to the transaction' of business by the court,untilafter the app.o4ttment· of, M;r. l)Ul'halp. comptroller of the treasury, in the any. c)Iange in the law, he refused to ,allow cleIlks fOl',tbeir the court had transacted·busin:ess: and cJab;Q./'l qE!!d j on December 14, 1885; lin the.case of Jones v. US;, 21 Ot. C1.1, his to a sundry: do so wasillegal;'i'lle act of August 4, 1886, limiting the anpropriation f?r the, eU,rrent fiscal upon. the to"tliose . J;msiness is actually tranlitacted" In tlietn; "without chnmnrig tM ge!leral la'Y upon the subject; and it was apparently passed without discussion or notice. It is as follows: ·· part :tif,th1s act be In payment of It verdlem coti!penllawm ttl any or mt1rs.hal' for attend' ance In court'.except for days when business ds 'adllaUy\transacted In .court, and when, theya,1ltend, under sections 583, ,{)S4,·, 6';lj ,672, and 2013 of Revised Which fa,ctshal) In t)le, approval of their ac· counts." 24)ltat.253." i : °l,j , ,i' ' ",
ot
Under this Durham act of 1$86, lapel' ,dietn fee for the transaction 'bu'Siness WI1'$:'substitute<'Hor theiatteridancefee.Itdeprived clerks Of their fee;:ffurmereattendance;i: f TM; basis of tMircompensation was' changed/from "attendance": to !the, of business," and a per diem fee for the general transttctionof business was added to the specifie fees' 'Whieh .' are allowed, in connection therewith. But, the Durham act of 1886 applied to a single appropriation only, and was
BUTLER F
v.
UNITim STATES.
limited ,thereto by its own terms. It did not change thf' general law on the subject. U. S. v. Aldrich, 7 C. C. A. 431, 58 Fed. 688. Within seven months afterwards, the Durham act of IH86 was pro· posed for enactment as a general law; and, congress being advised that it was unjust to clerks because it deprived them of any compen· sation for their "attendance" on those davs when no business is transacted by the courts, it was rejected on that account only. In order to relieve the Durham act of 1886, as a general law, from any objection on that account, it was thereupon amended, on "March 3, 1887, by inserting in it, after a full and thorough discussion of the whole tnatter, the words, "The court is open by the judge for business or," making it read as follows: ". · · Nor sha,1l any part of arty money appropriated be used in payment of a per diem compensation to any attorney, clerk or marshal for attendance in court except for days when the court is open by the judge for business or business is actually transacted in court, and when they attend under sections 583, 584, 671, 672 ,and 2013 of the Revised Statutes, which fact shall be certified in the approval of their accounts." 24 Stat. 541.
It appears from an e:x:amination of the proceedings in congress, as reported on pages 1229, 1232, 1233, and 1234, voL 18, pt. 2, and page 2606, pt. 3, Cong. Rec. 49th Cong., 2d Sess., that the word "open" in the act of March 3, 1887, is a misprint for the word "opened." In this act of March?, 1887, the per diem fee for the general trans· action of business was retained, and the per diem fee for mere attend· ance, which had been excepted from the previous appropriation, ,was restored and given a permanent place in the appropriations' for judicial expenses, and the provision for both is in accordance with the terms of the general law of 1853 and section 828, Rev. St. The legislative history. of the act of March 3, 1887, shows, and the supreme court of the United States and the circuit court of appeals for the First circuit have held, that it is a legislative interpretation and con· struction of the act of 1853 and section 828, Rev. St., and in aid of those statutes, instead of a limitation on them. U. S. v. Pitman, 147 U. S. 669, 13 Sup. Ct. 425, and U. S. v. Aldrich, 7 C. C. A. 431, 58 Fed. 688. The circuit and district courts are therefore actually in session, and per diem or attendance fees are authorized when (1) "the court is opened by the judge for business," or (2) "business is actually transacted in court." An elementary and fundamental rule in the construction of stat· utes is stated by Sedgwick in his work on Statutory Law (page 199), as follows: "That construction is favored which gives effect to every clause and every part of the statute, thus producing a consistent and harmonious whole. A construction which would leave without effect any part of the language usecl should be rejected if an interpretation can be found which will give it effect."
This rule is supported by federal and state authorities, and is uni· versally conceded to be an accurate exposition of the law. ,The authorities are, so num,erous that it is hardly possible to cite an (\f them. ,It was hel,dby the supreme court of Indiana in Palmer v. Stumph, 29 Ind. 333, that "the rule in ,construing a statute requires that effect is to be given to every part;· and we are not to suppose words have been used which were intended to import. nothing." And in Balti·
660
REPORTER.
more v. Howard, 6 Hal'. & J. the supreme court of held that "it is a rule in the exposition. of statutes. that one part shall be' taken with another, and the whole considered together, and so con· strued that no clause, sentence, or word shall, if it can be avoided, be superfluous or insignificant." . when there are two acts on the same subject, the rule is to give effect to both if possible. U. S. v. Tynen, 11 Wall. 88; Chicago,:U. & St. P. Ry.CQ.v. U. S., 127 U. S. 406, 8 Sup. Ct. 1194; District of Columbia v. Hutton, 143 U. S. 18, 12 Sup.Ct. 369; Frost v. W'enie, 157 U. S. 46, 15 Sup. Ct. 532. In the late ruling and opinion of the comptroIler on the appeal of the petitioner' herein (4 Dec. Compt. 161), holding that a clerk is en· titled to per diem fees only when "the court is opened by the judge for business," the second clause of. the act of March 3, 1887, as quoted above, viz. ''business is actually transacted in court," is not given any meaning whatever. The whole of the second clause is rejected as mere surplusage. It is treated as an absolute nullity, and stricken from the body of the statute. Under the rule of construction which has been quoted above, the second clause ought to have been retained by giving it a reasonable interpretation if it were possible to give it (Jne. If a reasonable construction of the second clause is possible,it is the duty of the court to adopt it. The possibility of a reasonable construction of the second clause is therefore the first thing to be de· termined. Its, determinatioll; depends on the meaning which shall be given the word "court." . If it refers exclusively to the regular term (Jf a court when it is "opelled by the judge for business," the second clause is unnecessary and meaningless, because it is embraced in the first clause. But the word is limited in the first clause by the phrase "opened by the judge for business," because the word has a broader meaning. Otherwise the limitation would be unnecessary. Its limitation in the first clause is evidence that a court may exist withQut being opened by the judge, just as its limitation in the second clause, by the phrase ''business is actually transacted," is evidence that a court may exist without the transaction of business. A broader meaning is expressly given the word by sections 574, 638, and 4973, Rev. St., which provide that the courts shall be "always open," and by section 16 of the act of February 4,1887, which provides that they shall be "always in session" for certain purposes without any formal act or order of the judge in aid of them, as' follows, viz.: "Sec. 574. Thl! district courts, as courts of admiralty, and as courts of equity, so far as equity jurisdiction has been conferred upon them, shall be deemed always open, for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all Interlocutory motions, orders, rules and other proceedings, preparatory to the hearing, upon their merits, of all causes pending tllerein. And any ( 3trict judge may, upon reasonable notice to the parties, make, and direct and awat'd, at chambers, or in the clerk's office, and in vacation as well as In term, all such process, commissions, orders, rules and other proceedings. whenever the ··llame ai'enot grantable of course, according to the rules and tlractlce of. tl;le' court. * * *" . " "Sec. 638. The clrcult courts,as. courts of equity, shall be deemed always open for the'purpose of filing any pleading, of issuing and returning mesne and final process, and of making aria dlre'cting all Interlocutory motions, to the hearing, upon their orders, rules find. other proceedings, . merits, of all.causes pending thereln. ! And any jIJdge of a circuit court may,
661
upon reasonable notice to the parties, make,and direct and award, at chambers or In the clerk's office, and In vacation as well as In term, all such process, commissions, orders, rules and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court." . "Sec. 4973. The district courts shall be always open for the transaction of business in the exercise of their jurisdiction as courts of bankruptcy; and their powers and jurisdiction as such courts shall be exercised as well in vacation as in term time; and a judge sitting at chambers shall have the same powers and jurisdiction, inclUding the power of keeping order and of punishing for any contempt of his authority, as when sitting in court." "For the purposes of this act, excepting its penal provisions, the circuit courts of the United States shall be deemed to be always in session." Inter· state Commerce Act Feb. 4, 1887 (24 Stat. 385).
These statutes were in existence before the act of March 3, 1887, and in its passage congress is assumed to have acted with reference to them, and to have used the word in its broader meaning as used therein. U. S. v. Trans-Missouri Freight Ass'n, 7 C. C. A. 15, 58 Fed. 58, 67. A session of the court is held under these statutes whenever the business described in them is transacted by the judge between its regular terms; and its proceedings are entered upon its records with· out the entry of orders for its opening or adjournment because it is always open and they are unnecessary. In Re Delgado, 14Q U. S. 586, 11 Sup. Ct. 874, the supreme court of the United States had under consideration a statute of the territory of New Mexico which provides: "For the purpose of hearing applications for and Issuing writs of mandamus the district court shall be regarded as open at all times wherever the judge of such court may be within the territory."
-and held concerning it: "This section gives full authority for these proceedings. The original application was entitled 'in the court,' though addressed to the judge, as was proper. The hearing and judgment were by the court, and the peremptory mandamus was issued by direction of the court; and the power of the legis· lature to provide that the court shall always be open for certain purposes cannot be doubted." 140 U. S. 588, 11 Sup. Ct. 875. '
In this decision the supreme court has not only provided a broader definition of the word "court," but it expressly holds that business which is transacted in a court that is alwavs open under the statutes, and while it is open in that way only, is actually transacted in court. In Michigan Cent. R.Oo. v. Northern Indiana R. Co., 3 Ind. 239, the supreme court of Indiana held that: "An Interlocutory order made by a judge In vacation Is to be regarded as the order of the court, for which the said judge is authorized by law to act. * ** All orders legally made In a cause, whether by the court in term, or by a jUdge in vacation, are regarded as orders of 'the court.' * * * The words 'the court' and the 'judge' or ',JUdges' are freque.ntly used In our statutes as synonymous; and, when used with reference to orders made by the court or judges, they. were, we think, intended to be so understood."
And, under a statute of Indiana which authorized the appoint. ment of receivers ''by the court or the judge thereof in vacation," it was held in Pressly v. Lamb, 105 Ind. 171, 4 N. E. 682, that: ''The judge of the court In vacation is clothed with exactly the same power and authority, no greater and no less, as is the court itself when In regular and open session. * * * When the judge· ofa court in vacation is
,'8'iLFEDERiA'I:. REPORTER.
'
engaged tip.Ldoing these acl:s and making these orders, it Is clear j we ,thInk. * *" *1 that his acts, orders, and proceedings in the premises, although· had .in: vacation,' are the judicial. pDoC'eedlngll of the court whereof he Is judge. >I! , *'*. Inialegal,sense, the·ju\lge,o,Lacourt is the CouJ;t.,'Oertainly, there can be no court under our laws, constitutional or statutory, wjthout ,a judge. * · * It Is In' this legal, Sel1lle;" we think, the word& 'judge thereof in vacatiop,' BO 'often mentioned in ,the sections of the Code before referred to, relating to receivers, should be ' taken and understood to mean 'court in vacation.' "
In First Nat. Bank Clpll11,rv. U. S. Encaustic Tile Co", 105 Ind; 227,236,4 N. ,E. 846, it was again held, in accordance with Pressly v. Lamb, supra, with reference, to the appointment of a receiver by judge vacation," that: . "The 'court haVing jurisdiction 'of the suit, and of the parties thereto, plaintiffs and defendants; Itheproceedings had and orders made by and before the judge: of the (lol).rt by vacation were the proceedings and orders of the, court wheJ;eof he ,was jUdge, and tb,at such orders and proceedings,evel1 though erroneous, Were not void, andcol)ld not begollatattacked." '
In these cases, applicable tQ like sections 574 and (}eclaring that the courts 'are ·'always open" for the appomtmept ,()f" ;l'eceivers; I bU,t. the sqpreme court . the. courts were; . open ..whenever a receiver of'.t¥ei:-r'judg;es ofa statute which authorized "a judge" to .make the:aP.I>ointiuent; thee provision: tf-e judicial being the same as the pi'Qvision of the federal corrstItution. " It was held in Bowman v. Railway Co., 102,m. 4.59, 467, a authorized for the condemnationof p,rivate property forpubUc use to be maQe the judge of the circuit or county court, either in vacation or .term time," that these whenever made and allowed, proceedings in court, and that the act 01 it jtldge in vacatioll allOWing them to be filed then was an act of the cO,u.rt, and. could not be' anything else, under a similar pro' ... vision ofthee6nstitution of Illinois. It was held by the supreme 'of Georgia in Pease v. Wagnon, 20 S. E. 637,' fhat, under sections 4221 and 4223 'of the Code, a jUdge of the court, though acting in vacation and at chambers in passing lawful orders touching trust estates, acts as a court of equity, that court being always open, and the presumptions which attitch in favor: of judgments and decrees by a court of general jurisdiction apply to prders thus granted. . also, McClurg v;:M:CQhlrg, 53 :Mo. 173; (jold v. Railroad Co., 19 Vt. 478; v. SuperiorOourt Francisco, 60 Cal. 223.' " ., wereena.cted,'it was held 'Even bE!fore seetions574 and by :Mr.Cliief Jristice Marshall, iii -Gharles,26 Fed. Cas. 982 (No;, 15,618)j where objections :w.ere ,made to, an' execution on. an admiralty,bond:because the had been released on an order, at chambers f that it was ail OrderroftheMurt. .The ,court saidt
one
,"The,objeetJons are:' (1) That the ,order for .release 1S a nullity, RI,d all the consequent proceedings void, because the'order was made ,by :the judge, ,at act appoints certain stated his chambers, 'and not,in court.
663 terlnS of the distriCt court,andglves the judge power to hold special terms at his dlscretlop, either at the p,laceappolnted by law, 'or at such other place In tile district as the nature of the business'and his discretion shall direct.' (Vide sections 581 and 669, Rev. St.) No power, it is contended, Is gIven to the judge, except when sitting as a court, and' tberefore the form of declaring himself to be a court is indispensable to the validity of his acts. This objection seems rather technical tban substantiaL By law, the district judge alone composes the court. He is a court whei'ever and whenever he pleases. No notice to parties Is required. No previous order IS necessary. The various ex parte orders' which admiralty proceedings require render this informal mode of acting essential to justice and expedition. The judge will take care that neither party be Injured by the orders which he mak(';s ex parte; and, where they are of course, it is convenient that they should be lIjade w.ithout the formality of summoning the parties to attend. It does not seem to be a violent construction of such an act to consider the judge as constituting a court whenever he proceeds on judicial business. Such seems to have been the ,practice in this and other districts of the United States. Had the judge prefixed to his order such wordS as these, 'At a special court, held at - - , on this - - day of - - , it is ordered,' etc., the proceedings wO\lld have been regular, for the law does not, in terms at least, require that the order for a special court should bEl made in court, or made any given time previous to its session. To every putpose . of justice, the order of the judge, made in his Character as a judge, is made by him as a court, whether he declares himself in words to be a court, or not. This order is, in its nature, jUdicilll. It is i:1uch an order as may be made ex parte. It issigIled by the judge in his official cbaracter, and is directed to the officer of the court. Under such circumstances, I cannot overturn a practice which is convenient, which is not liable to abuse, on a mere tecbnicll;l objection."
In "Coluts and Their Jurisdiction," by John D. Works, the law is stated as foVows: "Although. terms of court may be provided for generally, the legislature may provide' that, for the transaction of business of an urgent character, the court shall be open at all times; and, under such legislation, the court may act with referl:ince to such business during what Is, .as to other business, vacation. But this is not. the· act of a judge in> vacation, .ot the court. And when a judge is authorized to appoint a receiver. or perform otller like judIcial acts, iUs held that bis acts, orders, and had in vacatio.n, are the judiciar' proceedings of the court whereof he is judge. This is, however, based upon ,the ground that the words 'court' and 'judge' are, as in tile statutes ,authorizing the appointment of a receiver, synon' ymous." Page 377.
A l:'eview of the dec1sions and text-books discloses that, under a constitution wh,ich the judicial power in courts, it cannot be vested by the legislature anywhere else; that, where an exercise of judicial power by a judge is authorized by the legislature,' it is held to have meant thecourt(jf which he is a judge; that his acts and proceedings in :sucha case are the acts and proceedings of the court itself; that the business which is transacted by him ia actu'any-transacted in court. It also appears 'that where a legislature has 'gone further, and specifically declared that acoui't shall be "always open" for the transaction of partievlar business" and that, safar as that particular' business is concerned, the terms of the courts shall be practically' coritinu()us l:\,nd without any vacations between them, the power of the legislat,l'lre to' do so, and to make the acts and proceedings 'of a judge in pursuance of his authOrity the acts and proceedings of the court itself; has never been' denied by any court where these questions have been presented for its consideration. A
664.
87 FEDERAL REPORTER.
reason for such legislation by congress exists in the fact that JudMal power, under the federal constitution, is vested in COul'ts only. The power to ordaiilandestablish inferior courts is vested in congress, and it, accordingly, regulates the scope and boundaries of their jurisdiction,prescribes the number of judges by whom they shall be held, and determines generally the conditions under which the judicial power that is vested in them· shall be exercised It fixes the time and place for holding regular terms of the courts, and it authorizes the courts or the jUdges to fix the time,and place for holding special term.s of the and it authorizes· the courts to sit in chambers for the transacth>n ()f an important part of. their whenever and wherever they deem it necessary or proper to do so. Rev. St. §§ 572, 574,576, 581, 638, 661,664, 666, 668-670, 4973, and Act Feb. 4, 1887, § 16., A single judge may hold a court, and exercise the juqicial powerth;lt is vested in it, un'der the conditions that are prescribed by congress. But, whenever judicial power is exercised by a judge in accordance with these conditions, it is exercised by him as a court, or it is unauthorized by any constitutional authority. His acts in thi exercise of judicial power are, in short, either acts of a court, or they ,are void. It is therefore quite apparent that the word "court" means some· thing more than 'a court that is opened by the judge for business at the beginning of a regular term, and continued by adjotnnment until the close, thereot. As used in, the act of March 3, 1887, it has a broader and more comprehensive meaning, 'which is definitely fixed by other federal statutes and the decisions of the supreme court of the United States andother courts. By giving this meaning to the word where it occurs in the act of March 3, 1887, a reasonable construction is given the whole act, which makes it "consistent and harmonious," and gives effect to every part of it. Any other construction fails to do so. SUch a construction is not only reasonable and possible, but is in accordance with the purpose of these statutes, which' is to provide a compensation for the attendance of an officer when his services are or maybe required by the court. It is a compensation for "attendance," as distinguished from "services." Attendance is required in order that judicial functions may be duly pEll,'fQrmed, and it is just,as necessary when judicial,functions are performed in vacation as when they are performed during a regular term. It is essential for the due performance of ,them by the court that a record of its, proceedings should be made and kept, and it is the duty of a clerk to make and keep such a record. His attendance on the court is therefore reqnired when· ever the court is, held. ,A courti8 ;beld, and, a record of its proceedings is made, and kept on every day: ()fa regular term, and on ever]' day that business is transacted 9ythe court in vacation. U. S. v. Aldrich, 7,0. C.A. 431, 58 Fed. 68&. It clerical services are rendered in the tran&uctiop..of business, eithel1 in term or vacation, an addi· tional compensa Uon is Jht;lJll. A fee .lor, the entry of orders and decrees does not compensate him for his attep.darice on the court in vacatioJ;l, any more than it; does in the course of a term. These are separate and distinct functions, and they are separately compensated.
BUTLER Y. UNITED STATES.
665
The statement of the comptroller that it was the purpose of congress, in the enactment of the act of March 3, 1887, to "cure" some mysterious and indefinable "evil," is wholly imaginative. There is nothing in the act which justifies any such assumption, or furnishes any excuse for it. On the contrary, the history of that and a comparison of it with previous acts, show that it was passed to restore fees that were then arbitrarily disallowed by the comptroller after having been allowed by the accounting cfficers for nearly half a century. In assuming to give effect to this hypothetical policy of congress, the comptroller subjects himself to the criticism of the supreme court of the United States in the construction of other statutes. It is said in Refrigerating Co. v. Sulzberger, 157 U. S. 1,36, 15 Sup. Ct. 508, 516, that: "In our jUdgment, the language used Is so plain and unambiguous that a refusal to recognize Its natural, obvious meaning would be justly regarded all indicating a purpose to change the law by judicial action, based upon some supposed polley of congress. But, as declared in Hadden v. Coliector, 5 Wali. 107, Ill, 'what is termed the polley of the government with reference to any particular legislation is generally a very uncertain thing, upon which all sorts of opinions, each variant from the other, may be formed by different persons. It is a ground much too unstable to rest the jUdgment of the court on in the Interpretation of statutes.' 'Where the language of the act Is explicit,' this court has said, 'there is great danger In departing from the words used, to give an effect to the law which maybe supposed to have been designed by the'legislature.' Scott v. Reid, 10 Pet. 524, 527."
The language of the act of March 3, 1887 is so "natural" and "obvious" and "explicit" that the sole rule of construction that is really applicable thereto.is as stated by the supreme court in U. S. v. Goldenburg, 168U. R95, 18 Sup. Ct. 3: "The primary and general rule of statutory construction Is that the Intent of the lawmaker is to be found in the language that he has used. He Is presumed to know the meaning of words and the rules of grammar. The courts have no function of legislation, and simply seek to ascertain the will of the legislator. It is true there are cases In which the letter of the statute Is not deemed controlling; but the cases are few arid exceptional, and only arise where there are cogent reasons for believing that the letter does not tUlly and accurately disclose the Intent."
The cases of Converse v. U. S.,26 Ct. CI. 6, and Ackiss v. U. S., 31 Ct. Cl. 283, are cited by the district attorney in support of his contention. In the Converse (jase it was erroneously held that a clerk is not entitled to his attendance fees under the first clause of the act of March 3, 1887, when the "court is opened by the judge for business," and is entitled to them only under the second clause, when "business is actually transacted in court" at a regular term. Its construction of both clauses has been rejected by the comptroller in his late ruling and opinion on the appeal of the petitioner herein (4 Dec. Compo 161), and in the later case of S. Rodman Smith, clerk of the United States courts for the district of Delaware, (Id. 508); and it cannot be accepted as an authority for his construction of the phrase "in court," which was the fundamental error of that case. Although it was decided in .1890, it has never been adopted as a rule of practiCE;!. The facts of the Ackiss Case disclose that, on the days for which attendance fees were eharged, the court was neither opened by the judge for bu.siness. nor
. 87 '"FBlDllID\:U 'REl'OlU!Bllt\ ;:r
was tmnsaeted :by' him as 'a cOllrtorotherwise, and''th,e'Cllse is therefore ,wholly 'inapplicable here;i,'1'I1, ' ," The'fee whJch'is clairneli!iin' tlie"caseofRS.v.'Wade,was taxed and charged against tbegoverument urider,ru provision ,of section 828, Rev. StI,'whit!h "." "For makJrrgl dockets', and iitlIexeg, tanrig, costs and other serv:lcoo In a case which ls"dlsmlssed or discontinued:, or "where judg!J;lent:or decree Is made or one ijollll,l'!:,
In the statutes whiCh at Evansville, New Albany, itndFt. Wayne, provision is made for separate dockets and indexes, etc., and for deputy clerks;' who shall reside andkeep,tbeir offices at each of, these points. Before this case was tranSferred from Indianapolis to Evansville, it was entered upon, the dockets and it was, subsequently ep,tered upon the dockets and indexes at Evansm.lle., The costs were taxed at Indianapolis, and will bave to be taxed again at upon the final dispositiOij"of the ,the amount of work: is done in the case as would have to not been ',transferred. The same amount of work is dODe' as would have been done if there had two cas 'So far as theaIllount of work is concerned, it is pre$. Gililely thesam,etn ripon two separafesets of dockets and indexes as in,entering;tWQ, cailes on, one set of. dOGkets and iridexes. When the'case was't'l'lUisferred, to EvansvillejJt was "discon"",,., ," , " ',',,' tinued" at IndiAna.polis. In U.S. y. ,Mc(.1a.ndless,i4't,:o, ,e(' 695" 13 it that a docket ;wa8n91 ,tax:able,ut;Ll;il,the,final of a cause'; but that ruling was overruled in D. S. v. Kurtz, U.S. 49, 17 Sup" Ct!, 15. Even in the McCandless" Case it wasl'very plainly indicated that,' if the "case ''had'reaGbedthi;itpqint are tax¢q," would have , ,'The that applied to the case unden consideration here 'Yas announc(!dbythe Sl1prenIeCourt in U. S;v.King;,147 U,S.676, ,13 Sup. in that should be allowed a clerk places at the same tiIp.e, the "Glet\{ was entitled to charge for 'his own attendance at orie'place', 'and fha1;/of,his deputy at ap,'other." ,,147U: S:682, ;1.3 S\ip;jo1!! 441." t ' I \i, ',' ," , , The fees'wliichare case of U;S: v. Barnard were taxed 'the gtl+ernnrent under 'a provision of 828, Rev. St.,whicq isae "'Forlldmi'nistering an oath or affirmation,except to a juror, ten ',cents," "' In this case the witnesses were sworn during.' the progress of 'a 'trial"and wit4 the'<>rder of th¢judglwho was holding 'Wecourt, and)lOt upon a requesfwhich to the clerk .by the defendant thereiIl,as' seems' to h,ave been,asf;'uined by the ac:counting 'The for both"pl1I1ies, alid were ','sworn, and tliey were ", witnesses prosecution, 'instead ofadvUaction between private individuals, and the fees for swearing thei'i::i are a part of the costs ofihe generaladn1in,istratioriM , justice, 'which are payable by the , It wnsn<;>t optional with the clerk to swear 'theBe witnesses or not.' When 'a defendant i
66,7
·&Pplies to the .clerk to majIe anaffidayit before him, he caJ;ve,quire his fee at the 1;im.e or before is and, failing t9,doso, it is hi.s loss. But)Ie cannot, arrest the proceedings in a cruninal trial until b,is for swearillg witnesses are paid or se.curfld. E:e cannot decline t9 Swear..them because payment is In many cases the witnesses for the defendant are brought into court at of the goverrpnElQt,because the defendant is unahle to procur(l their attendance. is the duty of the clerk to cOlIlPly with the order of the court, and swear .aU the witp.esses in accordance therewith. Their testimony is required by the court for its .own information concerning the facts of a case, and not because the defendant is inter sted in having them sworn. And the clerk is entitled. to his fees for with the order and pra.ctice of tb,e services rendered in court. . . In U. S. v. Van Duzee, 140 U. S. 169, 176,11 Sup. Ct. 758, 7'61, the supreme court held: "When. a clerk performs 1IJ service in obediellce to the ..order of· the. court. he is as much entitled to compensation as if he were able to put his finger Qn a particular clll,use of a statute authorizing compensatioh for· such services." . . . . : ·. 'J
The decision of the supr(lme court in the Van Duzee Case W:lj.S followed by the circuit court of, appeals for the Seventh V.s. v. Conversel.24 U. S.App. 89, 11 C. C. A. Fed. 423. An,d the late comptroller held in Van Duzee's Case,2.Dec. Compo 217, that.: "A practice established ·01' directly sanctioned by the judge has the same force and effect.all rule of court, and the clerk oifhe court a.cting thereunder is entitled to fees. for the servIces rendered necessarliy by such· practice,"
The fees which are claimed for filing and entering affidavits for indigent defendants were tali and charged. aga,inst the government, d under a provision of section 828, Rev. St., which, is follows: "For filing and entering every declaration, plea,c;>r other paper, ten cents.." These affidavits were filed. and entered because the court ordered the clerk to file and enter them.· They were prese:nted to the court before they were .filed and entered by the clerk. They would nQt have been filed and entered by tp.eclerk unless the court had. ordered him to file and enter them. They were filed and entered by the clerk as the foundation of the order.. af the courtwhich was made upon them. The order of the court to file and enter them, and.to issl:lr subprenas ·,for the witnesses named therein,. was a single and indivisible act. It is conceded by the accDuntingofficers that a clerk is entitled to ;his fee for entering an order of the court for Summoning the witnesses .(Locke's Case,2Dec.COmp.578), but tbat.he is en,tWed to fOJ: filingapd enterin,g the affidayit on which the order is founded (Brooks' ·'·Case, lIt 224). much tohis fee for one service as the other, and he is entitled ttl hiS fee' the same grounds. The filing and entering of the affidavit, and the entry of the order thereon, are parts of the same transaction. See U. S. V. Van Duzee, supra, U. S. V. Converse, supra, and Van Duzee's Case, 2 Dec. Compo 217, as to fees of clerks for services rendered under an order of the court, and in accordance with its practice. The fees which are claimed for affidavits to the marshal's accounts were taxed and charged against the government under the act of
as
668 congress approved February 22, 1875 (18 Stat. 333), as interpreted by the supreme court in U. S. v. Van Duzee, 140 U. S; 169, 171 (Item 3), 11 Sup. Of: 758. Under that statute; Ii marshal is required to "render" his accou.nts to the court, and to "prove" theniby his own affidavit. An account is. "rendered" when it is presented. Rendering an account, andp;rovingan accollnt, are separate and distinct transactions, under the statute. The former'does not iJi'clllde the latter. The account is rendered for the benefit of themarslHll. Uis proved for the "convenience and protection of the government,"and "the expenses attendant thereon ai'e proper char;ges against the government." Such is the language of the supreme court, and the principle of the decision is plain. Whatever isOQ.one for the benefit of the marshal is chargeable againsthirnself. Whatever is done for the "conven.ience and protection" of the government is chargeable against itself. No charge by the clerk for affidavits was under consideration in this case. But in the case of U. S. v. Allred, 155 Uo So 591, 15 Sup. Ct. 231, where a charge for affidavits by deputy marshals to their accounts was under consideration, .the supreme court held, in accordance with the prhiciple of its decision in U. S. v. Van Duzee, supra, that the feesfdrthese affidavits should be paid by the government. It is perfectly clear that, if ,the fees for affidavits by deputy marshals to their accounts are chargeable against the government, the fees for affidavits by marshals to their 'accounts must also be chargeable against the government, on the principle of the Van Duzee Case. the accounting officers have invented a novel distinction between these two classes of affidavits, namely: Where an affidavit 'to an account is required, for the'convenience and protection of the government, by an act of congress,it ianot 'chargeable against the 'government; but 'where an affidavit to an Mcount is required, for tbe convenienceand protectiohJof the J!:overnment, by the attorney general or the a'ccollntinJ!: officers;'it is chargeable against the governmen 1. . CQ-/Je, 2 Dec.' <1omp.. 482. , In,U. S. v.Jones; 147 U.S. 672;673 (iteml), 13 Sup. Ct,437, the 'supreme court· placed 'its own' ;construction onits decision inU. S. v. Van Duzee,supra, as f o l l o w s : ; , , "The labor olpreparlng one'll accounts, for or fees Is a mere 'Incident to the reirdltltm of tire ,service, and IsuniveTsally assUlued by the . creditor as hill own burden:; but ,the approval 'of· the account of, anotber stands upon a different footing; 8.Jilll .Ifptlrformed at .the requestoftbe governII\.ent, or under a, statute to. be performed for the. prqtectlon the government, there Is no reasonwby the clerk sbould not receive sucb fee,S as receives for 'analogous servlces'ln other matters."
, These in the opinioJ;1 of the court, justify and require ,theallowance,9fthe fees in So ordered. , , ',1
HARRISBURG TRUST CO. V. SHUFELDT.
669
HARRISBURG TRUST CO. v. SHUFELDT. (Circuit Court of Appeals, Ninth Circuit. No. 388. 1. BXT-OFF-NEGOTJABI,E INSTRUMENTS.
May 23, 1898.)
plead against the assignee a set-off which he holds against the assignor unless the demand sought to be set off existed at the time of the assignment, and belonged to the party in good faith before notice of such assignment. 2. NEUOTIABLE INSTRUMENTS-UNINDORSED NOTES-EQUITABLE TITLES.
§ 806, when a party Is sued by the assignee of a chose In action, he cannot
The right to set-off Is wholly statutory, and under 2 Hill's Code Wash.
The assignee of an unindorsed negotiable note takes only an equitable title, but the note then stands on the same footing as nonnegotiable paper, and he may, under the Washington Code, maintain In his own name an action against the maker.
The fact that a note Is transferred without Indorsement Is sufficient to put the transferee upon Inquiry as to all equitable defenses that existed at the time of the transfer; but a "set-off" Is not a defense, as that term Is ordinarily used, whether the title to the note be equitable or legal, and Is never pleadable as a defense unless expressly made so by statute.
In Error to the Circuit Court of the United States for the Northern Division of the District of Washington. Strudwick & Peters, for plaintiff in error. Hastings & Stedman, for defendant in error. Before GILBERT and ROSS, Circuit Judges, and BELLINGER, District Judge. GILBERT, .Circuit Judge. The Harrisburg, Trust Company brought aaaction in the Circuit court to recover upon a promissory note for $3,000 made on March 31, 1894, by the defendant in error, in favor of the Guarantee Loau & Trust Company, payable on de· mand, with interest at the rate of 10 per cent. per annum, which note was on July 16, 1894, sold and delivered to the plaintiff in the action. In his'answer to the complaint the defendant in error set forth an affirIh8:tive defense, which was, in substance, as follows: That the note was never indorsed by the payee; that it was delivered to the plaintiff, or to one Edward L. Bailey. an officer thereof, together 'with other negotiable paper, as a pledge to secure the repayment of an advancement made by the said Bailey, individually, or as an officer of the plaintiff; that said note bears no indorsement save a credit of interest and $500 on account of theprineipal; that on May 23, 1896, there was standing to the credit of the defendant with the said Guarantee Loan & Trust Company the sum of $2,092.80, and on said da.y the Guarantee Loan & Trust Company certified a certain check, purporting t() be drawn by the defendant, payable to the order of the county treasurer, in the sum of $2,085.30, which check was not accepted by the county treasurer, but has remained and is the property of the defendant;' that on October 3,1896, the defend· ant demanded from the Guarantee Loan & Trust'Company delivery of said note, and tendered in payment thereof the said certi-
,670 fied check, a receipt for a general deposit of $7.50, and the sum of $454.41 in cash, which tender refused; thatthe'li\l'I-id note was received by the pledgee thereof without the defendant's knowledge or consent, llndthat the: plaiIitiff aeql1ired no' right <Y.!:': tiNelt> said note "other than that then and sincebeld 'by the Guarantee Loan & Trust Company;" that the Guarantee Loan & Trust Company made an on May 25, 1896, for. and that until subsequent to said assigiu:D!'!nt thedefeJ;lda,nthj;ld, no knowledge' that al1lY person other than the payee 'held the note, and that when tbe payments were made OIl account ,of,; principal and interest'the note was in the' possession of thepa:ree thereof. To ihis affirmati"e defense plainWfqemurred, ,and'itsdenmrrer was ()verruled, the court holding,thafthe' matters set forth in answer were suftioitmt in law to constitute 'a set'o:lf to the action, to the extent of the amount represented by the 'said certified' eheck. The qUelltion, ,presented upon the writ of error to Whether or not the'cQurt erred in so ruling.. ,'" ,,: ,'.,: The right to set-off is wholly ,statutory, and in this,joase its exist· upon the provisions of the statutes of thtHtate of Wasbington. The Code of Washington (2- Hill's (joa eJ : :, i :j':
,the
"Sec. 806. The defendant in a ci,v!l raction Upon a cC)lt,rlJ,ct or plied may set orr any demand ofa like nature against the plaintiff in Intel'est $.t t,he time of the, commencement ot the which existed and belonged, to.. sult. And in all such act,ions, qther upon a negotiab,le, p,"omissorYnote Qr bill of exchange negotiated in goM flilth, and without notfce before due, wWchhas been aSsigned to the plMntuf, he,mIlY. also Ilet <IlX a .demand of a ,Ike nature existing against the person to whom he was originallY :pll,ble, "or apy assignee prior to the plaintiff of such contract, provided such'demand exIsted at the time of the assignment thereof, and belonging to the defendant In good faith before notice of'l;luch assligUmentDlnd ,was ,such ,R,.deIiiand'S:s·inight have been set, oft agajl).st: ; perspn, be. ,\,Vll;s ,1 ,allie, Mbelongep to ;,' :. ," '; "'
interpretatioll. is sued,;by pf a chose in act!()n" he canDotplea4 \\gainliJt the !t'l3Jet-off Which ,he holdS agflinst the aS$jgnor, the deU/.a:yd ito beset oil:, e:l:ist,ed at the :QJ;l1e .pfthe assignpl,ent, and in tore, A siInilar is, found, ,in the state of NeWc }:'Qrk,andit,p/:!-IB constitl1tfs,thesetroff must 'existed,a,gaj,nst .at, ;the, PIne :w:liI>eJ!. ,he, madl:;, the. S7 N. ·. Hun, 261;, g,N. Y; ,SllPp:239·; ,Brisban :y.Ql\inej!l, 10 J9b.s, record in" the pres.eJ!.t, case:,int()rmB lIS, iPe<jlI6,Count: :<1th.e defe.udant in error ,as. a PQsitOfWi :tl1 :'l'ruJ!tOQJP.pany. Qiq,)Il()t ;.f:!xis't plio,.to.,¥ay 1896, !1,ea,I:'ly 'tQ transfer, ,of" £!rroJ:.. (By;; Qf lthe ' the :alpPUQt with X,ljust Cpmp.l!Lny, ea;n,llOt as a; to, tn.# there: are ,otller fac,ts to: stat1;1tory,pro¥iin, the case .. It is QanteI;lde!l errol>..tJ.mt;;tlw
,This
il!
BYRD V.
HALSY.
the Ilotewas transferrep, indorsement. renders the statute in· applicable, and that the delivery' of the ,in pledge for money borrowed, conveyed to the transferee thereof only an equit;'lble title to the ,note, and that iuan action on such a note delivered after maturitY,especially in a case in which the maker of the note had no notice of the transfer, the latter may avail himself of all the equitable defenses which he possesses. There can be no douot of the correctness of the "latter propos}tion. The· pledgee or assignee of a note, which has been delivered to him without the indorsement of the payee takes only an equitable title to the note, but as such equitable owner he may undoubtedly, under the Washington Code, maintain in his own name an action against, the maker. .The note inthe of such a holder stands upon the same footing as nonnegotiable paper. Simpson v. Hall, 47 Conn. 417. The fact.that it is transferred without indorsement is sufficient to put the transferee upon inquiry as to all equitable defenSes that existed at the time of the transfer. But a set-off is not a "defense," as that term is ordinarily used (Chandler v. Drew, 6 N. H. 469; Waf.. Set-Off, §§ 5, 6), and is never pleadable as a defense unless it is expJ.'essly made so by statute. "The rule that a party taking an overdue bill ,or note takes it subject to the equities to which the transferel.' is subject does not extend so far as to admit set.offs which mig-ht be available'ag-ainst the. transferer. A set-off, is not an equity, and the general rule stated is qualified and restricted to those equities arising out of the pill or note transaction itself,and the transferee is not subj.ect to a set-off which would be good against the transferer arising out of.collateral matter.'" 2 Daniel, Neg. Inst. 1435a; Chit.Bil1s (13th Am. Ed.) 251. The set·off.in this case is not connectedwithJ1J,e note, or "With the consideration for the note, or the circumstances under which it was given. It is not a defense to the note or to liability thereunder.! It is a separate and independent cause of action, existing in favor of the defend/lilt, which, by virtue of the statute only, is permitted to be set off against the plaintiff's debt for the purpose of adjnsting mutual demands and avoiding unnecessary litig-:;ttion. It follows, therethat it is immaterial whether the plaintiff's title to the note was equitable or legal. In either case, the rightto plead a set-off against it must depend upon the terms of the statute. The judgment of the circuit court is reversed, and the cause will be remanded for'iuvther proceedings not inconsistent. with these views.
BIRD et aI. v. HALSY. (Circuit Court, W. D. Virginia. March ,22, 1898.)
L
DEPOSITIONS-ExHIBITS SEPARATELY MAILEP-NoT IRREGULAR,
No merit lies in attaching exhibits to depositions other than that of safety in preserving and Identifying them, as parts of the depositions.. If this identitlcatlon be made clear, and especially if It be not denied, that they are the exhibits In question, the exhibits cannot be deprived of their char-