will be estopped from denying its validity. But, if any controversy exists, no payment should be made to an assignee, except after the decree of a competent court determining the rights of the parties thereto (3 Lawrence, Compt. Dec., Introduction, XLII). The result is, that the cases are but few and peculiar in character, in which accounting or disbursing officers recognize, or deal with, a party having only an equitable title to a claim.

The draft in this case should be paid on the indorsement of Dougherty, and to him; because:

1. That is the order written on its face in express terms.

2. Such payment is required by the express contract arising upon the judgment.

3. Dougherty alone has the legal title to the claim, and he alone can execute an acquittance of the liability of the United States.

4. The character of the trust declared in the judgment may be prima facie evidence of an equitable right in Slavens, but it is not conclusive; and if he has such equitable right, it may be of a character to require actual payment to Dougherty. A court of law has no power to inquire as to that. No law has given executive officers power to inquire as to that, or has required them to perform so difficult, if not impossible, a duty. Hence payment should be made only to Dougherty.

5. A payment on the indorsement of the cestui que trust, ignoring the party having the legal interest, would not, as a rule of construction requires, give some effect to every word and clause of the judgment and draft, but would render all that relates to Dougherty surplusage, while a payment on his indorsement gives effect and purpose to every word and clause of the judgment and draft.

The Treasurer will be advised accordingly.

TREASURY DEPARTMENT,

First Comptroller's Office, August 8, 1883.

IN THE MATTER OF THE PER DIEM FEE OF COMMISSIONERS OF THE CIRCUIT COURTS, "FOR HEARING AND DECIDING ON CRIMINAL CHARGES."-WHITE'S CASE.

1. A commissioner of a circuit court is entitled to a per diem fee of five dollars "for hearing and deciding on criminal charges": (1) when the accused pleads guilty, and is committed or admitted to bail for his appearance at court; (2) when the accused makes a motion to the commissioner to be discharged, on the ground that the charge does not constitute a crime, and this motion is heard and decided; (3) when there is an examination of the criminal charge by the commissioner, and the accused is committed or admitted to bail for his appearance at court, or discharged.

2. A commissioner is not entitled to a per diem fee when he, for the use of the district attorney, reduces to writing the statement of the accused, and this is the only service performed.

3. When a commissioner hears and decides on more than one criminal charge against the same person on the same day, he is only entitled to one per diem fee.

4. So he is only entitled to one per diem fee on a day when he hears and decides on a charge or charges against each of two or more persons, severally.

5. Opinion of Attorney-General Black, of June 7, 1858 (9 Op. Att.-Gen., 170), cited and approved on one point.

B. White, a commissioner of the circuit court (Rev. Stat., 627) at Cleveland, Ohio, by letter of August 7, 1883, to the First Comptroller, makes explanations of his per diem charges for hearing and deciding on criminal charges (Rev. Stat., 727, 847, 1014), as stated below:

As to one of the per diem items, for hearing a charge against a party for sending obscene matter by mail (Rev. Stat., 3893; act July 12, 1876, 19 Stat., 90), he says, that:

"The defendant appeared with a lawyer, who, on a motion to dismiss, argued that the matter sent was not obscene. I decided that it was. The defendant then denied [the sending of the] matter. The cause was continued to a subsequent day to secure the attendance of witnesses. Then, on hearing, the defendant was [found guilty] and entered into a recognizance to appear at the next term of court to answer the charge." And, for the day on which the argument on the motion to dismiss was heard, he claims a per diem fee.

As to another class of cases, in which the commissioner charges per diem fees "for hearing and deciding on criminal charges," he says:

"In my practice he is asked to give his version of the matter. In nineteen cases out of twenty, he gives the statement asked for, which is written down by me for the use of the district attorney. If I doubt his statement, evidence is heard, if [the witnesses are] present; if not, the case is adjourned long enough only to bring in the evidence."

the affidavit is read to the defendant, and

In the examination and settlement of commissioner's accounts, the question is presented "to the First Comptroller for his decision thereon" (Rev. Stat., 269, 277)-whether the above-mentioned commissioner, upon the explanations contained in his letter, is entitled to the per diem fees charged by him, as stated, for hearing and deciding on criminal charges?

DECISION BY WILLIAM LAWRENCE, First Comptroller.

The commissioner is entitled to receive, as the statute says, "for hearing and deciding on criminal charges, five dollars a day for the time necessarily employed" (Rev. Stat., 847).

1. The right to this per diem may arise in each of several events. Among them are these:

(1). When a party charged with crime pleads guilty before a commissioner and is committed or gives bail to appear at court, or when he waives an examination and is committed or gives bail, the commis

sioner is entitled to the per diem. He has, in such cases, heard and decided on a criminal charge.

(2). When the accused appears, and, by himself or attorney, makes a motion to be discharged, on the ground that the written charge against him does not constitute a crime, and this question is considered and decided, this is within the statute a "hearing and deciding on criminal charges." If, in such case, the further hearing is necessarily postponed to a subsequent day, in order to procure the attendance of witnesses, the commissioner is entitled to the per diem fee.

(3). When there is an examination of the criminal charge by the commissioner, and the accused is committed or admitted to bail for his appearance at court, or discharged, the commissioner is also entitled to the per diem fee.

2. The commissioner is not entitled to a per diem fee, when he merely asks the accused to give his version of the charge, and this is given and written down for the use of the district attorney, being the only service performed. This practice is without any authority of law. Of course, if the accused, with a knowledge of his rights, voluntarily makes a statement, and the commissioner reduces this statement to writing, and submits it to the district attorney, no law is violated. But the commissioner, as an officer, should not exert the influence of his office to obtain unwilling statements from the accused, or admissions, which uninformed persons might suppose it a duty to make, because asked by an officer (1 Greenleaf, Ev., §§ 213-235). One duty of the commissioner is, to inform persons ignorant of their rights or duties, that they are not required to make any disclosures which may tend to criminate them. At all events, for a service of this character as described by the commissioner, he is not entitled to a per diem compensation. In rendering such service, he was, in no sense, performing a duty required or sanctioned by law "for hearing and deciding on criminal charges" (Black, June 7, 1858, 9 Op. Att.-Gen., 170). The hearing contemplated relates to evidence required or sanctioned by law.

3. When a commissioner hears and decides on more than one criminal charge against the same person on the same day, he is only entitled to one per diem fee; since the "five dollars a day" allowed by the statute is not for each criminal charge heard and decided, but "for the time necessarily employed" during any particular day in "hearing and deciding on criminal charges."

4. When a commissioner hears a criminal charge or charges against each of two or more persons severally, all on one day, he is only entitled to one per diem, and for the reason just given.

TREASURY DEPARTMENT,

First Comptroller's Office, August 10, 1883.

IN THE MATTER OF THE AUTHORITY OF COMMISSIONERS OF THE CIRCUIT COURTS TO APPOINT PERSONS TO SERVE CRIMINAL PROCESS ISSUED UNDER THE LAWS OF THE UNITED STATES.-SPECIAL DEPUTY MARSHAL'S CASE.

1. Deputy marshals of the United States have no claim against the United States for their services. They are paid by the marshal who appoints them. There is no privity of contract between the United States and deputy marshals.

2. A de facto officer is generally not entitled to receive compensation from the United States.

3. A commissioner of a circuit court of the United States has no authority, under any circumstances, to appoint a special deputy marshal, or other person, to serve a warrant of arrest, or other criminal process, issued under the laws of the United States against an offender, not even in a State in which a justice of the peace is authorized by the State statute to appoint a special deputy constable to serve a criminal warrant of arrest issued under the laws of such State.

4. When a statute provides in general and comprehensive terms a mode of performing all services of a specified class, a subsequent or other statute will not generally be deemed as creating an exception thereto, unless such other or subsequent statute clearly so requires.

5. The original statutes, from which sections of the Revised Statutes were taken, may be examined "to construe doubtful language used in the" latter, but not to ascertain "if errors were committed in revising."

6. The case of United States v. Horton's Sureties (2 Dill., 94) examined.

September 30, 1882, Leroy Neale, a commissioner of the circuit court of the United States for the district of Kansas, made a written appointment, at Chetopa, of S. B. Sloane as "special deputy marshal, to serve a warrant of arrest on Cyrus Johnson, who was charged before" said commissioner "with the larceny of a horse from the Indian Territory;" which appointment certifies that it "was made in the absence of the marshal or [of] one of his deputies, and that said Sloane was duly sworn as required by law." The person so appointed served the warrant, and charged the usual mileage, cost of transportation, subsistence, jail fees, guard fee, and fee for attending examination before commissioner, in all, $55.48.

June 18, 1883, this account, duly verified by the oath of Mr. Sloane, but without having been "approved" by any court (Rev. Stat., 846; act February 18, 1875, 18 Stat., 318; act February 22, 1875, Id., 333), was transmitted by Hon. J. R. Hallowell, United States attorney for the district of Kansas, to the Attorney-General with a letter stating that the account is correct, but that the marshal refuses to pay it. June 22, 1883, this letter and the account were by the Attorney-General referred to the First Comptroller. June 29, 1883, the First Comptroller by letter advised the district attorney of Kansas that the account could not be paid.

Hon. J. R. Hallowell, the district attorney, submitted an argument to

the First Comptroller in support of the claim, by letter of July 11, 1883, in which it is said :—

The act of Congress of September 24, 1789, section 33 [1 Stat., 91], provides: "That for any crime or offence against the United States the offender may, by any justice of the peace of any of the United States where he may be found, agreeably to the usual mode of process against offenders in such State

be [1] arrested, and [2] imprisoned, or [3] bailed, as the case may be, for trial before such court of the United States as by this act has cognizance of the offence." [Rev. Stat., 727, 1014.]

By the act of the 23d August, 1842, section 1 [5 Stat., 516], it is pro vided::

[U. S.] commissioners

shall and may

"That exercise all the powers that any justice of the peace of the United States may now exercise in respect to offenders by [1] arresting, [2] imprisoning, or [3] bailing the same under [section 33 of] the act of *

hundred and eighty-nine." [Rev. Stat., 727.]

of any

[September 24], seventeen

In United States v. Horton's Sureties (2 Dill., 94), Judge Dillon decided the question of the law of the State governing justices of the peace in the arrest and trial of offenders to be applicable to U. S. commissioners.

By section 4456, Compiled Laws 1879 of Kansas, justices of the peace, for the purpose of making arrests, and other purposes therein named, are authorized to appoint special deputies to serve process in certain cases. In the absence or sickness of a constable the justice may appoint.

The appointment of Sloane by Commissioner Neale was authorized, and the Government of the United States should compensate him for his services.

DECISION BY WILLIAM LAWRENCE, First Comptroller.

More space will be devoted to the decision of the question involved in this case than would otherwise be deemed necessary, because of the learning and ability of the distinguished district attorney who has fur nished an argument in support of the claim made. This argument deserves full consideration:

1. If, on account of the appointment by the commissioner, Mr. Sloane became de jure or de facto a deputy marshal, he can only be paid by the marshal. Deputy marshals are employés of the marshals; the United States has no dealings with deputy marshals. There is no privity of contract between them and the United States (Rev. Stat., 780, 841; 1 Lawrence, Compt. Dec., 2d ed., App., ch. xv, 624; Herndon's case, 1 Lawrence, Compt. Dec., 2d ed., 46.