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UNITED STATES v. STOWE and others.

(District Court, D. Minnesota. February 23, 1884.)

1. DOUBLE COMPENSATION-PROHIBITION APPLICABLE ONLY TO OFFICIAL SERV

ICES.

Officers and agents of the government are not forbidden to receive extra com. pensation for services rendered entirely apart from their official functions, but

only for services required of them within the scope of their employment. 2. PAYMENT OF FREIGHT-AGENT ENTITLED TO REIMBURSEMENT.

The statutes do not forbid the payment of freight by an Indian agent when supplies are demanded at once by a sudden emergency, and an agent paying such charges is entitled to reimbursement.

Action upon the bond of Lewis Stowe, late Indian agent at the White Earth Reservation. Defendant Stowe, as such agent, and under the direction of the commissioner of Indian affairs, hired Warren, the official interpreter at the agency, to render certain services as a day laborer in the government warehouse, and as a clerk in the agent's office. For such services he paid Warren $336. This item was disallowed by the accounting officers of the government in the settlement of Stowe's account, under sections 1764, 1765, 2074, 2076, Rey. St. For the transportation, in 1876 and 1877, of certain government property from St. Paul to Detroit, Minnesota, for the use of the agency, defendant Stowe paid to the Lake Superior & Mississippi Railroad Company $210.67, and to the Northern Pacific Rail. road Company $52.55, which expenditures were disallowed by the accounting officers of the government, under paragraph 2, § 1, c. 133, (18 St. at Large, 452,) also section 1, Supp. Rev. St. 171, (Richardson's.) For the deficiency caused by these disallowances this action is brought.

C. A. Congdon, Asst. U. S. Atty., for plaintiff.
Gordon E. Cole, for defendants.

NELSON, J. Stowe, the agent, was authorized by the commissioner of Indian affairs to have the services performed for which he paid Warren, the interpreter. The law required the agent to execute this order. Rev. St. § 2058, p. 362. Warren was not forbidden to receive compensation for doing the work. Sections 1764 and 1765, Rev. St., do not apply to this case, for the employment was not in the line of his official duty as interpreter, and had no connection with it. It is only when extra and additional duties are imposed upon an officer as a part of his duty, and he is bound to obey or perform them, that such officer is not entitled to and cannot receive extra pay, unless it is fixed by law, and “the appropriation therefor explicitly states that it is for such additional pay,” etc.

2. In my opinion section 1, par. 2, Supp. Rev. St. p. 171, and section 5, act of 1864, granting land to the Lake Superior & Mississippi Railroad Company, and section 11, charter Northern Pacific Railroad Company, do not forbid the payment of freight by the defendant; and it was admitted in the argument that a sudden and unforeseen emergency had arisen, requiring prompt action in the interest of humanity. If so, an equitable credit, at least to the extent of the claim made by the defendant, should be allowed, under the act of March 31, 1797. See U, S., v. Lowe, 1 Dill. 585.

Judgment is ordered for defendants.

A provision in an act of congress, prohibiting persons holding office under the United States from receiving compensation for discharging the duties of any other office, does not apply to services entirely unconnected with their official position. U. S. v. Brindle, 4 Sup. Ct. Rep. 180.—[ED.

ROSE v. STEPHENS & CONDIT TRANSP. Co.

(Circuit Court, 8. D. New York. April 8, 1882.)

NEW TRIAL-DAMAGES-PERSONAL INJURY-NEWLY-DISCOVERED EVIDENCE.

In an action to recover damages for a personal injury a motion by defendant for a new trial because of newly-discovered evidence as to the extent of plain. tiff's injuries will not be granted where it does not appear that defendant, before the trial, made any investigation as to the character of the injuries received.

Motion for New Trial.
Chauncey Shaffer, for plaintiff.
Thomas E. Stillman, for defendants.

WALLACE, J. The motion for a new trial upon the ground of newlydiscovered evidence should not be granted, because the defendant has failed to show that by the exercise of reasonable diligence the evidence newly discovered could not have been obtained and used upon

the trial. The evidence relates to the extent of the injuries received by the plaintiff through the negligence of the defendant. The plaintiff alleged in his complaint that he had sustained severe injuries, and claimed $5,000 damages. It does not appear that prior to the trial the defendant made any investigation to ascertain the character or extent of these injuries. Its officers seem to have contented themselves, in their preparation for a defense of the action, with accepting the plaintiff's case as it might appear upon the trial, so far as this issue is concerned. If it had been shown, upon this motion, that an effort had been unsuccessfully made upon their part, by inquiry of such persons as would be likely to have knowledge of the facts, to ascertain the character of the plaintiff's injuries, a very different case would be presented, and one which might appeal with some force to the favorable consideration of the court. To grant the motion upon such a case as is made would encourage supineness on the part of defendants. The precedent would encourage defendants to ignore proper preparation upon one material issue, in order to obtain the chances of a second trial in case of failure upon the other issues.

The motion is depied.

In re Account of ALLEN, Chief Supervisor of Elections, etc.'

(District Court, E. D. New York. November 12, 1883.)

ACCOUNTS OF SUPERVISOR OF ELECTIONS-ACT OF FEBRUARY 22, 1875, (18 ST. AT

LARGE, 333,)—U. S. REV. ST. § 2031–CERTIFICATE OF JUDGE UNDER Ø 846.

The effect of Rev. St. $ 2031, is not such as to bring the accounts of a chief supervisor of elections within the scope of the act of February 22, 1875, (18 St. at Large, 333,) providing for the passing of accounts of cierkš, marshals, district attorneys, and United States commissioners in open court.

Account of Supervisor of Elections.
Frank W. Angel, Asst. U. S. Atty., for the United States.
John J. Allen, for himself.

BENEDICT, J. The account of John J. Allen, the chief supervisor of elections in this district, was presented to the district judge of the district, and was certified by bim pursuant to section 2031 of the Revised Statutes in the manner heretofore adopted with reference to other similar accounts. The same account is now submitted to the district court by the district attorney, for the purpose of having the account passed on in open court, in the manner provided for the accounts of clerks, marshals, district attorneys, and United States commissioners by the act of February 22, 1875, § 1, (18 St. at Large, 333.) This action on the part of the district attorney has raised, among others, the question whether the effect of section 2031 is to bring the accounts of a chief supervisor of election within the scope of the subsequent act of February 22, 1875, which act is, by its terms, limited to the accounts of clerks, marshals, district attorneys, and United States commissioners. Upon this question my opinion is that no such effect can be given to section 2031, and that the act of February 22, 1875, has no application to the accounts of a chief supervisor of election. For this reason, therefore, if there were no other, the court is con. strained to decline to enter upon the inquiry tendered by the district attorney in reference to this account, without passing upon the validity of a statute like this of February 22, 1875, which seeks to authorize proving of an account "in open court" before a circuit or a district court, and at the same time provides for the revision of the action of the court by the accounting officers of the treasury. See U. S. v. Ferreira, 13 How. 40; U. S. v. Todd, Id. note, p. 52; Ex parte Gans, 17 FED. REP. 471.

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Reported by R. D. & Wyllys Benedict, of the New York bar,

A further suggestion having been made that the judge's certificate attached to this account is not a certificate such as contemplated by section 846, I take this occasion to say that the certificate is in the form adopted many years ago, and, so far as I am aware, it has always, up to this time, been deemed a sufficient compliance with the provisions of section 846. In my opinion, no other or different certificate can be required of the judge in respect to this account.

The account is therefore directed to be returned to the district attorney, to be dealt with by him as he may be advised.

HENDRYX and others v. FITZPATRICK.

Circuit Court, D. Massachusetts. April 2, 1884.)

CONTEMPT-POWER OF COURT TO REVOKE ITS ORDERS.

An order committing a defendant for contempt, in refusing to pay a sum of money, is civil, and not criminal, in its nature, and the court which committed him is at liberty to release him again in case he sbows himself unable to comply with the requirements of the court

In the Matter of Contempt of Court.
T. W. Porter and J. McC. Perkins, for complainants.
A. H. Briggs, for defendant.
Before LOWELL and NELSON, JJ.

LOWELL, J. In this case the defendant was enjoined from infringing a patent, pendente lite, because, though the court had serious doubts of its validity, the defendant had himself sold the patent to the plaintiffs for a considerable sum of money, and it was thought no more than justice that he should refrain from violating his own implied warranty until the final hearing. Afterwards proceedings for contempt for a violation of the injunction were prosecuted by the plaintiffs, and after evidence taken and a hearing, the defendant was ordered to pay the fees of the master by certain day, the costs of the proceedings, and certain profits assessed by the master, by certain other days, and in default of payment to be committed. These last two sums, when paid in, were to be paid out to the plaintiffs. The defendant failed to make the last two payments, and was committed to prison. After he had been in confinement for about two weeks the district judge, with my approval, though I was unable to sit in the case, permitted the defendant to go before the master and prove, if he could, in proceedings like those under the poor-debtor law of Massachusetts, that he had no property which he could apply to the payment of his debts. The plaintiffs were duly notified of the hearing before the master and did not attend, and the master admitted the defendant to take the poor-debtor's oath; and thereupon the court discharged him upon his own recognizance.

The plaintiffs now move that the defendant may be recommitted under the original order. They argue that every order since made in the cause is ultra vires and void, because the first order was a final decree in a criminal case, and could not be varied after the term; and because the defendant could only be discharged from arrest by the pardon of the president. It would be a sufficient answer to this argument, that, if the order was a criminal one, having the consequences contended for, the fine should have been made payable to the United States, and the plaintiffs would have no concern with it; but we will explain why all the orders are, in our opinion, proper. The original order was an interlocutory civil order, for the benefit of the plaintiffs; and the commitment was for failure to pay the money, not for the original contempt. While, therefore, the imprisonment may not have been strictly and technically within our poor-debtor law, (Rev. St. $ 991,) which, however, we think it was, yet it should, at all events, be governed by similar rules. It was made in this way, because the master found that the contempt was not willful, and I thought that no punishment was necessary. The process of contempt has two distinct functions,-one, criminal, to punish disobedience, the other, civil and remedial, to enforce a decree of the court and indemnify private persons. In patent causes it has been usual to combine the two, and to order punishment if it is thought proper; or indemnity to the plaintiff, if that is all that justice requires ; or both. Re Mullee, 7 Blatchf. 23; Doubleday v. Sherman, 8 Blatchf. 45; Schillinger v. Gunther, 14 Blatchf. 152; Phillips v. Detroit, 3 Ban. & A. 150; Dunks v. Gray, 3 FED. REP. 862; Searls v. Worden, 13 FED. REP. 716; Matthews v. Spangenberg, 15 Fed. REP. 813.

We are aware that it was at one time the opinion of Judge BLATCHFORD that a sum of money ordered to be paid to a plaintiff, in a cause of this kind, was a criminal fine, which could only be remitted by a pardon; but we are of opinion that such a fine for the benefit of a private person cannot be remitted by the president, and is a debt of a civil nature; and that Judge BLATCHFORD has so treated it in the latest case which has come before him. His first opinion is stated in Mullee's Case, 7 Blatchf. 23, and Fischer v. Hayes, 6 FED. REP. 63; but when the latter case came before the supreme court, they expressed a significant doubt whether the order to pay money for the use of the plaintiff was not an interlocutory decree in a civil cause, (Hayes v. Fischer, 102 U. S. 121;) and when the case came back, Judge BLATCHFORD admitted the defendant to bail, (Fischer v. Hayes, 7 FED. Rep. 96,) which he could not have done if the judgment were crim. inal in its nature. The doubt of the supreme court might well have been even more strongly expressed. An order upon a defaulting trustee, assignee in bankruptcy, or other person subject to account, to pay money into court, is civil, and may be waived by the party adversely interested, and is a debt to which a bankrupt law, discharging the debt, and an insolvent law, discharging the person, are applicable.

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