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discretion, much less to tisurp and supersede it. To do so, in a single year, would require a revision of the details of every estimate and expenditure,,, based upon an inquiry into all branches of the municipal service; to do it, for a series of years, and in advance *is to attempt to forsee every exigency* and to provide against every contingency that may arise to affect the public necessities.

Because the judgment orders the payment to the relator of the sum of $10,000, annually, out of the seven-tenths of the levy of 1 per cent., it is reversed, with costs in this court; and the cause is remanded, with direction to enter a judgment in conformity with this opinion.

(110 U. S. 401)

BEAN and another o. PATTERSON and another."

(February, 1884.)

SUPREME COURT-CLERK'S FEE FOR RECORD-PAYMENT IN ADVANCE-DOCRETING Cause.

Where the record has been printed by the appellant, the cause may be docketed without securing the payment of the clerk's fee, chargeable under the present rules, in connection with the printing, but the printed copies cannot be delivered to the justices or the parties for use on the final hearing, or on any motion in the progress of the cause, unless the fee is paid when demanded by the clerk in time to enable him to make his examinations and perform his other duties in connection with the copies.

*402

Motion for leave to Docket a Cause. James S. Botsford, for motion. *WAITE, C. J. In this case the appellants have delivered to the clerk the requisite number of copies of the record in print, and they ask to docket the cause without securing the payment of the fee chargeable under the present rules in connection with the printing. The act of March 3, 1883, c. 143, (22 St. 631,) making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1884, made an entire change in the emol. uments of the clerk of this court. Before that act the clerk collected the fees of his office, paid the expenses, and kept what remained as his own compensation. He was not accountable to the government or to any one else for the income. The act of 1883 established a maximum for his annual compensation, and required to pay into the treasury all the fees and emoluments of the office over his salary, necessary clerk hire, and incidental expenses. The same act made it the duty of the court to prepare a table of fees to be charged by the clerk. This was done, and among the rest, is the following: “For preparing the record or a transcript thereof for the printer, indexing the same, supervising the printing, and distributing the printed copies to the justices, the reporter, the law library, and the parties or their counsel, fifteen cents per folio.” Rule 24, § 7.

The clerk is responsible to the court for the correctness and proper indexing of the printed copies of the record, for their presentation to the justices in the form and of the size prescribed by the rules, and for their delivery, when required, to the parties entitled thereto. As he must now account to the treasury for the fees and emoluments of his office, he may demand pay. ment in advance. Steeder v. Rickman, 109 U. S. 74; (S. C. 3 Sup. Ct. REP. 343.) If the printing is actually done under his supervision he may require

19. C. 12 Fed. Rep. 739.

the payment of the fee chargeable under the rule before the printing is done. If the parties themselves furnish the printed copies, the fee must be paid, if demanded, in time to enable him to make the necessary examinations and be ready to deliver the copies to the parties or their counsel and to the court when needed for any purpose in the progress of the cause. The fee is for the service specified in this item of the table, and is indivisible. Consequently, if the clerk performs any part of the service he is entitled to collect the whole fee; and if the printed record is used at all, it must be examined by him to see if it conforms to the copy certified below and on file as the transcript of the record. So that if the printed copies are used for any purpose in the progress of the cause the whole fee is chargeable. As the law now stands the fees and emoluments of the office belong to the government, subject only to the payment of the annual salary of the clerk, necessary clerk hire, and incidental expenses, and the clerk is the collecting agent for the government. As this record has been printed the case may be docketed without security for this fee, but the printed copies cannot be delivered to the justices or the parties for use on the final hearing or on any motion in the progress of the cause unless the fee is paid, when demanded by the clerk, in time to enable him to make his examinations and perform his other duties in connection with the copies.

Rule 31 relates only to the form and size of the printed records, briefs, and arguments, and has nothing to do with the fee now in question.

(110 U. S. 384)

COUNTY OF HOWARD 0. PADDOOR.

(February 4, 1884.)

MUNICIPAL Bonds-LOUISIANA AND MISSOUBI RIVER RAILBOAD COMPANY-JUDGMENT

AFFIBNED.

In Error to the Circuit Court of the United States for the Western Di ct of Missouri.

Jno. D. Stevenson, for plaintiff in error.
Ino, H. Overall, for defendant in error.

WAITE, C. J. It was conceded on the argument of this case that under the original charter of the Louisiana & Missouri River Railroad Company, granted in 1859, Howard county had authority to subscribe to the capital stock of the company without a vote of the people, and that this authority was not taken away by the constitution of 1865. The claim is, however, that the amending act of 1868 so changed the original charter as to subject it to the prohibitions of the constitution as to municipal subscriptions made after that act was passed and accepted by the company. As to this it is sufficient to say that in County of Callaway v. Foster, 93 U. S. 567, it was decided otherwise. By the act of 1868 power was given to build a branch through Callaway county, and to extend the road across the Missouri river, but no change was made in the direction of the main line. That was left to the discretion of the directors, who retained their original authority to build through Howard county on the way to Missouri. The original authority of Howard county to subscribe to the stock was consequently unimpaired. The fact that the branch through Callaway county was located, and the subscription of that county received, before Howard county made its subscription, is unitoportant in this case, because the line through Callaway county was located as a branch, whils that

through Howard county was designated in express terms as the main line. If either part of the road was built under new authority conferred on the company by the act of 1868, it certainly was not the main line as located. The power to build the main line was clearly conferred by the act of 1859.

It follows that the judgment of the circuit court was right, and it is conBequently affirmed.

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HABEAS CORPU8–CERTIFICATE OF DIVISION IN OPINION JURISDICTION.

The supreme court cannot take jurisdiction of a certificate of division in opinion between the judges of a circuit court in proceedings under a writ of habeas corpus, until final judgment has been rendered in accordance with the opinion of the presiding justice or judge.

On a Certificate of Division Between the Judges of the Circuit Court of the United States for the District of California.

Asst. Atty. Gen. Maury, for respondent.
No brief filed for petitioner.

WAITE, C. J. It was decided at the last term in Ex parte Tom Tong, 108 U.S. [S. C. 2 SUP. CT. REP. 871,] that this court could not take jurisdiction of a certificate of division in opinion between the judges of a circuit court*in* proceedings under a writ of habeas corpus until final judgment has been rendered in accordance with the opinion of the presiding justice or judge. This is such a case, and it is consequently remanded to the circuit court for further proceedings according to law.

386

(110 U. S. 400)

THE STATE (ELISHA RUCKMAN, Prosecutor) 0. DEMAREST, Collector,et c.

(February 4, 1884.)

WRIT OF ERROR-DEATH OF PARTIES—ABATEMENT OF SUIT.

Motion to Docket and Dismiss.
P. W. Stagg, for motion.

WAITE, C. J. This is a motion by Cornelius N. Durie, the successor in office of Demarest, the defendant in error, to docket and dismiss a case. From the motion papers it appears that Demarest, as collector of the township, recovered a judgment against the state, (Ruckman prosecutor,) in the court of errors and appeals of New Jersey, on the eleventh of July, 1866, and that Ruckman sued out a writ of error from this court, gave bond, and had citation signed, hut never docketed the case here. Ruckman died on the fifteenth of November, 1882, and Demarest in the summer of 1883. Upon these facts it is clear that the writ of error had become inoperative for want of prosecution long before it abated by the death of the parties. Grigsby v. Purcell, 99 U. S. 506, and cases there cited. The exact date when the writ was sued out is not stated, but if it had been delayed until five years after the judgment, there was no time within ten years before the death of Ruckman that

he would have been allowed to docket the case in this court, since that could only be done during the term to which the writ was returnable. It seems to us proper, therefore, to declare the suit abated by the death of the parties, and leave the representatives of those in interest to proceed accordingly. An order to that effect may be entered.

(110 V. S. 398)

TUPPER and another o. WISE.

(February 4, 1884.)

JURISDICTION OF SUPREME COURT-AMOUNT IN DISPUTE.

Distinct judgments in favor or against distinct parties, though in the same record, cannot be joined to give the supreme court jurisdiction.

668.

In Error to the Circuit Court of the United States for the District of California.

On Motion to Dismiss. * WAITE, C. J. This was a suit brought by Wise, the defendant in error, against the plaintiffs in error and others, to recover the possession of section 21, township 3 N., range 8 E., Mount Diablo base and meridian, containing 630 acres of land. Tupper answered, denying that he was in possession of any part of the section except the N. E. 4, and to that he set up a pre-emption claim and settlement. Lenfesty made the same answer and claim as to the S. E. ^ There was no joint ownership or joint possession. Each defendant claimed a separate and distinct interest in a separate and distinct part of the land. The jury found that the “defendants were each severally in the wrongful possession of the lands respectively described in their several answers, and no others, and that the value of the rents and profits of the land so held and possessed by defendant Tupper is one hundred dollars, of the land so held and possessed by defendant Lenfesty one hundred dollars, and that the value of each one of said tracts of 160 acres is three thousand dollars, and of the two of them six thousand dollars." Judgment was thereupon rendered against Tupper for the possession of his tract and $100 damages, and against Lenfesty in the same way. Tupper and Lenfesty then sued out this writ of error, which Wise moves to dismiss, because the claims of the several plaintiffs in error are separate and distinct, and the value of the matter in dispute with either of them does not exceed $5,000. This motion is granted. The rule is well settled that distinct judgments in favor or against distinct parties, though in the same record, cannot be joined to give this court jurisdio tion. The whole subject was fully considered at the last term in Ex-parte Baltimore & 0. R. Co. 106 U.S. 5; (S. C. 1 SUP. Cr. REP. 35;| Farmers' Loan & Trust Co. v. Waterman, 106 0. S. 265; [S. C. 1 Sup. CT. REP. 131;] Adams v. Crittenden, 106 U. S. 576; [S. C. 1 SUP. Cr. REP. 92;] Schwed v. Smith, 106 U. S. 188; [S. C. 1 SUP. CT. REP. 221.] The stipulation as to the value of the property which is found in the record cannot alter the case, for it states that the aggregate value of*the two quarter sections exceeds $5,100, and the verdict fixes the value of each quarter at $3,000. Dismissed.

400

1110 U. S. 400)

LYNCu and others 0. BAILEY and another.

(January 4, 1884.)

JURISDICTION OF SUPREME COURT-AMOUNT IN DISPUTE.

Tupper v. Il'ise, anie, 26, followed.

In Error to the Circuit Court of the United States for the District of California.

On Motion to Dismiss.
Henry Beard and C. H. Armes, for motion.
No brief filed in opposition.

WAITE, C. J. This, like the case of Tupper v. Wise, ante, 26, was a suit to recover ile possession of a whole section of land. Each of the plaintiffs in error was in possession of a separate quarter-section under a pre-emption claim. Their defenses were separate and distinct, and the recovery against each was for the land that he separately claimed and occupied. The value or the recovery from either of the defendants does not exceed $5,000, though the aggregate against all is more.

The motion to dismiss is granted for the reasons stated in the other case.

(110 U. S. 276)

KRIPPENDORF 0. HYDE and another.

(January 28, 1884.

1. JURISDICTION OF FEDERAL COURTS – BILL TO PREVENT THE UNJUST USE OF PROCESS.

If necessary to prevent the abuse of its own process a federal court will entertain a bill by a stranger to the suit in which the process issued, without regard to diversity of citizenship. Such a bill is regarded as merely incidental and ancillary

to the suit already pending. 2. SAME-DIVERSITY OF CITIZENSHIP UNNECESSARY.

The creditors of a certain debtor, by process out of the federal court, attached property in the hands of the complainant, who claimed title to it in his own right. The goods were returned to him upon his giving a delivery bond to the marshal conditioned upon his producing the goods at a day named, or paying their value. Complainant having disposed of the goods, and paid their value to the marshal, brought a bill for an injunction to prevent the money so paid in, which he claimed as his own, from being distributed to the creditors in the original suit. Held, that, being unable to maintain replevin against the marshal in the state court by reason of the goods being in the custody of the law in a federal court, the complainant had no adequate legal remedy, and was entitled to his injunction without regard to his citizenship.

Appeal from the Circuit Court of the United States for the District of Indiana.

D. V. Burns, for appellant.
Lew Wallace and Ā. W. Hatch, for appellees.

MATTHEWS, J. This appeal is prosecuted to review a decree dismissing the bill of the appellant for want of equity. The case made by the bill is as follows: In September, 1882, two of the defendants, partners as Hyde & Bros., brought an action at law in the circuit court against Lewis C. Frey and Jacob Č. Maag, partners as Frey & Maag, to recover an amount alleged to be due for goods and merchandise sold, and levied a writ of attachment issued therein on a stock of goods in the city of Indianapolis, as the property

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