United States v. Clough

• Decision Date: 06 February 1893
• Docket Number: 26.
• Citation: 55 F. 373
• Parties: UNITED STATES v. CLOUGH.
• Court: U.S. Court of Appeals — Sixth Circuit

55 F. 373

UNITED STATES v. CLOUGH.

No. 26.

United States Court of Appeals, Sixth Circuit.

February 6, 1893

S. W Hawkins, for the United States.

John B Clough, pro se.

Before JACKSON and TAFT, Circuit Judges, and SWAN, District Judge.

TAFT Circuit Judge.

This was an appeal from a decree of the circuit court for the western district of Tennessee adjudging the United States to be indebted to John B. Clough, a United States commissioner the plaintiff below, in the sum of $405.75 for fees earned by him as such commissioner. The petition was filed under an act of congress approved March 3, 1887, entitled 'An act to provide for the bringing of suits against the governments of the United States,' (chapter 359, 24 St. at Large, p 505), which conferred upon district and circuit courts of the United States a jurisdiction similar to that exercised by the courts of claims over suits brought against the United States. The judgment rendered covered and included fees for a number of items, only one of which is objected to and assigned for error on this appeal. The court below held that the plaintiff was entitled to a fee of 20 cents for affixing his commissioner's seal to warrants, writs of mittimus, etc., issued by him upon preliminary examinations, amounting in the aggregate to $141.40.

Under section 847 of the Revised Statutes, commissioners are entitled to the same fees as are allowed to clerks for like services; and under section 828 of the Revised Statutes the clerks are allowed for affixing the seal of the court to any instrument when required, 20 cents. Under section 1014 of the Revised Statutes the process issued by the commissioner is required to be the same as that issued against offenders under the state law by examining magistrates. In Tennessee the seal of the magistrate is necessary to validate his warrant or mittimus. Tackett v. State, 3 Yerg. 392. And it is therefore essential to the validity of a warrant of the United States commissioner, exercising jurisdiction in Tennessee, that his writs shall have his seal affixed.

It is contended by counsel for the appellee that it necessarily follows from the foregoing that the commissioner should be allowed 20 cents for affixing his seal to each writ. Were the foregoing all of the statute law bearing on the subject, the argument would be sound, but, in our opinion, the other provisions of section 828 show that it cannot be supported. By section 828, clerks are allowed 'for issuing and entering every process, commission, summons, capias, execution, warrant, attachment, or other writ, except the writ of venire or a summons or subpoena for a witness, one dollar. ' And under section 847 United States commissioners are...