"Even if it be true that the conveyance made by Annie C. McCormick to Lewis Thatcher terminated the right of the trustee to sell the property, as was held by the trial court,-a question upon which we express no opinion, -it is nevertheless entirely clear that Gottlieb relied upon the advice given him by counsel that the note secured by the trust deed could be lawfully levied upon and sold under execution, and believed that the purchase of the note gave him the right to subject the land to sale for the purpose of paying the debt evidenced thereby. In our judgment, the facts found justify but one conclusion, and that is that, in paying the taxes upon the land since 1879, Gottlieb was clearly acting under color of title obtained in good faith, and has thus become entitled to the land under the provisions of the statute of Colorado."

The facts being substantially the same upon this trial, I think it was clearly the duty of the court to direct a verdict for the defendant. The motion for a new trial will be denied, a judgment entered upon the verdict, and the plaintiff allowed 60 days within which to prepare and present a bill of exceptions for allowance.

KINNEY v. UNITED STATES.

(Circuit Court, D. Connecticut. February 6, 1893.)

No. 385.

1. UNITED STATES MARSHALS-FEES-EVIDENCE-MEMORANDA.

Entries and, memoranda made by a deceased United States marshal are admissible in evidence in favor of his administratrix in an action by her against the United States to recover for services and disbursements of the intestate in his lifetime.

2. SAME-EVIDENCE-ALLOWANCE BY COURT.

The approval of a United States marshal's account by a circuit court of the United States under Act Feb. 22, 1875, (18 St. p. 333,) is prima facie evidence of its correctness, and, in the absence of clear and unequivocal proof of mistake on the part of the court, is conclusive.

8. SAME-ATTENDANCE AT "HEARINGS."

A hearing on the question of admission to bail, or on motion to adjourn, or on arraignment or commitment, constitutes a "hearing and deciding," for the attendance upon which a United States marshal is entitled to a per diem fee.

4 SAME.

A United States marshal is not entitled to per diem compensation for attendance before the court where no certificate is filed showing that the court was open, and business transacted. Marvin v. U. S., 44 Fed. Rep. 405, followed.

5. SAME-ARRESTS-EXPENSES.

A marshal is not entitled to expenses incurred in endeavoring to make an arrest, when he had no warrant, and could not have arrested the accused if found.

6. SAME.

A marshal is entitled to expenses incurred in making an arrest, although such arrest was not made by the deputy sent for that purpose, but was made in consequence of information acquired in traveling about for that purpose, under the direction of the district attorney; and the marshal is not restricted to the statutory allowance of two dollars per day.

7. SAME.

He is also entitled to the expenses of the deputy in thus traveling about under direction of the district attorney, it appearing that the arrest followed directly from information thus obtained.

8. SAME.

Such officer is entitled to mileage in serving writs where it appears that the railroad route traveled was the nearest practicable. Fletcher v. U. S., 45 Fed. Rep. 213, followed.

9. SAME-RAILROAD TRAVEL.

Also to mileage for the distance proved to have been charged for by the railroad company, though the actual distance was a little less, and for the distance from the railway terminus to the destination.

10. SAME.

Also charges for actual travel, where the services and returns were in the same place, and there is proof that such charges had always theretofore been allowed and paid.

11. SAME-EXPENSES IN LIEU OF MILEAGE.

Also for actual traveling expenses charged in lieu of mileage.

12. SAME.

Also for travel for procuring witnesses from outside the district by direc tion of the district attorney.

18. SAME-TRAVEL TO ATTEND COURT.

The marshal is entitled to charges for travel to attend court on days which were consecutive. Harmon v. U. S., 43 Fed. Rep. 560, followed. 14. SAME-CONVEYING PRISONER.

Also to expenses incurred in taking a prisoner from the jail in one city to the courthouse in another, such a case not falling within Rev. St. § 1030, providing that for bringing any prisoner into court without writ, and on the order of the court or district attorney, no fees shall be charged. 15. SAME.

Also for mileage for taking a prisoner to and from the commissioner and Jail, by virtue of warrant and mittimus under the Connecticut practice, as in such case Rev. St. § 1030, has no application. Harmon v. U. S., 43 Fed. Rep. 560, followed.

16. SAME-RELEASES ON BAIL BOND.

Also for releases on bail before the commissioner, where such release involves the taking of a bail bond.

17. SAME-CARRIAGE HIRE.

Also for the hire of carriages to transport prisoners, and serve process, where the services are of great value, and the charges include only amounts allowed for travel or actual expenses.

18. SAME-STATIONERY.

Also for stationery furnished by the marshal for the use of the court, proper vouchers for the cost of the same being duly produced.

19. SAME-PAYMENTS TO COURT OFFICERS.

Also for payments made by the marshal to court messengers, criers, and bailiffs in pursuance of statutory requirement.

At Law. Action by Sarah T. Kinney, as administratrix of John C. Kinney, under Act March 3, 1887, (24 St. p. 505,) to recover for services and disbursements of her intestate as a United States marshal. Judgment for plaintiff.

L. E. Stanton, for plaintiff.

George G. McLean, U. S. Atty.

TOWNSEND, District Judge. This is an action brought under the provisions of the act of March 3, 1887, (24 St. U. S. p. 505,) wherein the plaintiff, as administratrix of the late John C. Kinney, seeks to recover certain sums for services and disbursements of said John C. Kinney as United States marshal, in those of his accounts settled after June 15, 1885, and including matters which accrued up to August 4, 1886, when he retired from office. The items of

said accounts have all been presented to the United States. Some have been suspended, some have been allowed in whole or in part after having been disallowed, others have been disallowed altogether. The United States, through its district attorney, denied the plaintiff's right of recovery. A transcript from the books and records of the treasury department was furnished by the United States under order of court. The defenses to the plaintiff's claim appear in the "statements of differences" stated by the auditor, and these are repeated in the bill of particulars. Most of the objections to the account raise questions of law which will be separately considered. The questions of fact seem to me to be generally established in favor of the plaintiff, for the following reasons: First The plaintiff being dead, and this being a suit by his administratrix, the entries and memoranda of the deceased relevant to the issue are admissible in his favor. Gen. St. Conn. 1888, § 1094. These entries, consisting of entries of the warrants against and accounts in favor of the plaintiff's decedent, were introduced and identified by the plaintiff, and show a balance, as claimed by her, in favor of the late marshal. Second. The settlement by decedent of his accounts with the United States was made in accordance with the provisions of the act of February 22, 1875, 18 St. at Large, p. 333. Under this law the marshal, as appears by the certificate of this court, "rendered to this court an account of his fees and expenses from the 1st day of January, 1885, to the 30th day of June, 1885, with the vouchers and items thereof, and, in the presence of Lewis E. Stanton, United States attorney, has proved on oath to the satisfaction of the court that his services and travel charged therein were actually and necessarily performed, and that the expenses were necessarily incurred;" and said account was duly proved. Further accounts for each subsequent six months, and covering the entire matter in this suit, were rendered and proved in the same manIf any objection is made to such an account, the burden is on the United States of establishing the validity of the objection. "A sufficient answer to this objection is furnished in the findings of the court below that the account of the commissioner for the fees charged for the services in question was verified by oath and presented to the United States court, of which he was a commissioner, in open court, in the presence of the district attorney, approved by the court, and an order approving the same as being in accordance with law, and just, was entered upon the record of the court. The approval of a commissioner's account by a circuit court of the United States, under the act of February 22, 1875, (18 St. p. 333,) is prima facie evidence of the correctness of the items of that account; and, in the absence of clear and unequivocal proof of mistake on the part of the court, it should be conclusive." U. S. v. Jones, 134 U. S. 488, 10 Sup. Ct. Rep. 615; Harmon v. U. S., 43 Fed. Rep. 560.

ner.

The plaintiff introduced, by way of further proof, a number of witnesses, who were deputies under said Kinney during his term as marshal, and who testified as to the services rendered and moneys disbursed by them under the orders of said marshal, or of the court, or of the district attorney. I therefore find (with certain

exceptions, to be hereafter noticed) that the services were rendered and moneys disbursed as stated in the accounts of said Kinney with the United States. As these items are scattered through the various divisions of the summary of a part of the bill of particulars on which my opinion is based, I shall, in passing upon them, merely state that they are allowed. The reasons for such allowance are expressed in the above general statement. The total amount of the bill of particulars is $2,087.69, but the real demand is only $1,134.53. This latter sum is the excess of the charges made by the marshal against the government for the period above named over the amount of warrants chargeable against him for the same period. It relates to two accounts,-one the account for marshal's fees and expenses, and the other the account for miscellaneous expenses of courts, and a small item, undisputed, for support of prisoners for year 1886. Of this latter sum $887.69 has been disallowed or suspended, and it is this amount which is embraced in a summary of a part of the bill of particulars. This summary is filed in the cause as an amendment of said bill of particulars. The difference between the amount thus suspended or disallowed and the whole sum demanded by the plaintiff is simply an amount allowed by the auditor, but not paid. It is not paid, because in June, 1889, the late marshal handed back to the United States substantially all the funds in his hands, and had nothing left with which to pay any balance which may be found due to his estate.

The items suspended and disallowed appearing in this long bill of particulars, are summarized under 15 heads as follows:

Item 1. Per Diems before Commissioners and Courts, $198. Of this amount $98 relates to per diems before commissioners. The auditor claims that no hearing on the question of admission to bail, or on motion to adjourn, or on arraignment or commitment constitutes a "hearing and deciding" within the law; in other words, he says that per diems can only be charged for a day on which a trial of the accused is had. I do not so understand the law. In U. S. v. Jones, supra, Mr. Justice Lamar says, (page 487, 134 U. S., and page 616, 10 Sup. Ct. Rep.:)

"The decision upon a motion for bail and the sufficiency thereof is a judicial determination of the very matter which the statutes authorize and require him to hear and decide, to wit, whether a party arrested for a crime against the United States, when brought before him for examination, shall be discharged or committed on bail for trial, and, in default thereof, imprisoned. With respect to motions for continuance, the granting or refusing of them is unquestionably a necessary incident and a part of the hearing and determination of criminal charges."

The charge of $98 for per diems before commissioners is allowed. The balance of the item, being $100, is for per diems before the court, disallowed by the auditor because no certificates were filed by the marshal to show that courts were open and business was transacted. Of said amount $80 have since been allowed upon explanation. As to the rest, counsel for plaintiff claims that, as the services herein referred to were rendered prior to the passage of the appropriation bill of August 4, 1886, whereby officers were obliged to show the transaction of business in order to recover, these charges

should be allowed. He contends that by the rendition of the service the fee is earned, and that thereby a contract arises to pay said fee. I feel obliged on this point to follow the decision in Marvin v U. S., 44 Fed. Rep. 405, in which Judge Shipman, disallowing a similar item, says, (page 408:)

"The appropriation bill of August 4, 1886, (24 St. p. 253,) provided that no part of the money appropriated by the act should be used in the payment of per diem compensation to a clerk or marshal for attendance in court except for days when business was actually transacted in court. This means business which belongs to the court, and is transacted by the judge; and places upon the clerk the burden of showing that business of the court was actually transacted on those days. The minutes simply show that the court was opened and adjourned, and, although the petitioner says that doubtless business of the court was transacted, he does not show what it was, within the proper meaning of that language, and I am therefore compelled to disallow the item."

This disallowance only affects the $20, the balance having already been admitted by the United States. Upon item 1 the amount allowed is $178.

Item 2. Expenses of Arrest. The two items of $1.30 each for expenses in endeavoring to make arrest are disallowed. I do not find any authority for such expense, within the district, where, as in this case, the officer had no warrant, and therefore could not have made the arrest even if he had found the accused. The item of $8.76, expenses of arrest, was disallowed on the ground that the statutory charge of $2 per day included all such expenses. It appeared from

the testimony of the deputy marshal that these expenses were incurred under the direction of the United States district attorney. The accused was not found at the place where the deputy marshal first went, but, by traveling about in New York and Massachusetts under the direction of the district attorney, he finally secured information which led to the arrest of the accused. The witness further testified that all the expenses of arrest were incurred in the service and on behalf of the United States. The auditor claims as matter of law that, no matter how meritorious the service, the officer can only receive two dollars per day, even though he may have expended several times that sum. But it seems to me that this construction of the law is not in accordance with the decisions. Thus, in Fletcher v. U. S., 45 Fed. Rep. 214, the court allows such charges where the arrest was actually made outside the district, on the ground that by such services expense is saved to the United States. It seems to me that, where such expenses are incurred under direction of the United States district attorney, the presumption is that this course was taken in order to save expense, and to best promote the ends of justice, and that, as the officer is bound to obey such instructions, such expense should be repaid to him, irrespective of the question as to who may have finally made the arrest. The item of $8.76 is allowed. As to the item of $48.80, expenses of arrest, it appeared that, although the prisoner was not arrested by the officer making this charge, yet that his arrest and conviction followed directly as a result from information obtained by said officer while rendering said services under the direction of the United States district attorney. This item is, for the above reasons, al