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trict attorney of the employment of extra keepers will not be sufficient to establish the right of the marshal to an allowance for the employment of such extra keepers.25 Notwithstanding the limit named in this clause, the marshal will be allowed the extra cost of dockage of a vessel seized while on a marine railway from which she could not be removed without danger of sinking.26 The libelant must get an order from the court directing the withdrawal of the keeper, if he would not be liable for keeper's fees should he lose the suit. Mere notice to the marshal is not enough. If the parties agree that the vessel shall be four months in the marshal's charge, the sum actually paid a watchman by him is taxable as part of the costs, even though the claimant also had a keeper on the vessel.28 Entry by the marshal into the bonded warehouse where the goods are stored, and levying of process against and affixing a notice of seizure upon such property, is an attachment upon the property within the meaning of the statute; and the custody fees of a keeper who visited the storehouse three times a day, though he did not enter, are taxable as costs.29 The court will not allow pay for extra men employed by the marshal to prevent the collector of customs from taking by force property from his custody.30 Nor will the court allow the marshal five dollars a day on the ground that two men were employed to watch,- one by day and one by night." But two dollars and fifty cents a day is not the absolute limit, and more will be allowed in the case of danger from thieves, and in other emergencies requiring more than one man to guard the property; since the marshal is bound to protect from damage a vessel in his custody. But when a marshal has done work in a defective manner, and additional labor becomes necessary in consequence, no compensation for the latter should be allowed. A marshal, being the party served, is not entitled to fees for serving a warrant for the delivery of a vessel to the claimant issued upon a stipulation of the parties; but he is entitled to be reimbursed for any expenses he

25 The Captain John, 41 Fed. R. 147, 149; The Perseverance, 22 Fed. R. 462. 26 The Novelty, 9 Ben. 195. 27 The Independent, 9 Ben. 489.

28 The San Jacinto, 30 Fed. R. 266.

32

29 Jorgensen v. Casks of Cement, 40 Fed. R. 606.

30 The Perseverance, 22 Fed. R. 462. 31 Ibid.

32 Ibid.

33 The Nellie Peck, 25 Fed. R. 463.

is put to on account of having been served with such warrant." The cost of pumping out a vessel in charge of the marshal is properly allowed against the claimants in admiralty. If, in the estimation of the court, it was, under the circumstances, prudent for the marshal to remove and insure property in his possession, he will be allowed the expenses necessarily incurred thereby.36 And he should insure it with reference to its actual market value, irrespective of its original cost. The marshal is also entitled to be reimbursed for his expenses in hiring wharfage for a vessel in his custody, when such a course appears to have been necessary. If several processes are issued against one vessel, and the marshal has possession under all the processes, the per diem custody fees should be apportioned equally among the claimants, saving to the marshal, in case any party fails to pay his proper proportion, a remedy against the other parties for the amount.39

40

"When the debt or claim in admiralty is settled by the parties without a sale of the property, the marshal shall be entitled to a commission of one per centum on the first five hundred dollars of the claim or decree, and one-half of one per centum on the excess of any sum thereof over five hundred dollars: Provided, that, when the value of the property is less than the claim, such commission shall be allowed only on the appraised value thereof." The word "claim " as here used applies equally to "a claim of forfeiture to the United States, in a proceeding in rem against a vessel," as well as to cases where the demand or claim is personal in its nature." The sum paid a libelant in settlement of his claim, and not the amount claimed in the libel, is the basis upon which the marshal's commissions are to be determined. The issuing of a process and the giving of a bond under section 941 of the Revised Statutes to the marshal will entitle him to his commissions in a suit in rem against a vessel under this clause, although the service of

34 The Jeanie Landles, 17 Fed. R. 91. 35 The Captain John, 41 Fed. R. 147. 36 U. S. v. Three Hundred Barrels of Alcohol, 1 Ben. 72.

37 Ibid.

38 The Novelty (Steamboat), 9 Ben. 195. But see The F. Merwin, 10 Ben. 403.

39 The Circassian, 6 Ben. 512; The John Walls, Jr., 1 Spr. 178. 40 U. S. R. S., § 829.

41 The Captain John, 41 Fed. R. 147, 151.

42 Robinson v. Bags of Sugar, 35 Fed. R. 603; The Clintonia, 11 Fed. R. 740.

43

the process be waived and seizure of the vessel be not actually made. If the amount of the final decree is paid before execution, that is such a settlement of the claim as will entitle the marshal to his commissions. So if part of the goods are sold or there is a part-payment in settlement, the marshal will be entitled to his commissions pro rata." Where a vessel is sold by a trustee under the limited liability act, the marshal is not entitled to a commission.45

"For sale of vessels or other property under process in admiralty or under the order of a court of admiralty, and for receiving and paying over the money, two and one-half per centum on any sum under five hundred dollars, and one and one-quarter per centum on the excess of any sum over five hundred dollars." 46 The marshal is not authorized by law to employ an auctioneer to make sales under process or decree in admiralty; and if he employs one, he can make no charge for the services of such auctioneer which he could not otherwise have charged. Nor can he make such charge by a notice prior to the sale, that an auctioneer's fee will be required of the purchaser in addition to his bid." Where a marshal has been paid his fees and commissions on the sale of a vessel under decree, and a claimant files a petition on which monition is issued, asking that the balance of the proceeds be paid to him, and the court so orders, the marshal cannot claim an additional commission on the amount paid by the claimant. Upon an interlocutory sale of prize property, the marshal is entitled to full commission. So if the property is removed to and sold in another district.50 The marshal's title to commissions accrues at the time of the sale, and he is entitled to deduct his fees at the time when he pays the proceeds into court. If, by agreement of parties, the vessel is sold outside of the territorial limits of the marshal's authority, he is, nevertheless, entitled to his fees.52

49

43 The City of Washington, 13 Blatchf. 410. Compare Bone v. The Norma, Newb. Adm. 533. And see The Clintonia, 11 Fed. R. 740, citing The Russia, 5 Ben. 84; Robinson v. Bags of Sugar, 35 Fed. R. 603.

44 Swann v. Ringgold, Cranch, C. C. 246.

45 The Vernon, 36 Fed. R. 113.

48

46 U. S. R. S., § 829.

47 The John C. Mulford, 18 Fed. R. 455; Crofut v. Brandt, 13 Abb. Pr. (N. S.) 132.

48 The Colorado, 21 Fed. R. 592. 49 The Avery, 2 Gall. 308.

50 The San Jose Indiano, 2 Gall. 311. 51 The Avery, 2 Gall. 308.

52 The San Jose Indiano, 2 Gall. 311.

"For travel, in going only, to serve any process, warrant, attachment, or other writ, including writs of subpoena in civil or criminal cases, six cents a mile, to be computed from the place where the process is returned to the place of service, or when more than one person is served therewith, to the place of service which is most remote, adding thereto the extra travel which is necessary to serve it on the others. But when more than two writs of any kind required to be served in behalf of the same party on the same person might be served at the same time, the marshal shall be entitled to compensation for travel on only two of such writs; and to save unnecessary expense, it shall be the duty of the clerk to insert the names of as many witnesses in a cause in such subpoena as convenience in serving the same will permit." "In all cases where mileage is allowed to the marshal he may elect to receive the same or his actual traveling expenses, to be proved on his oath to the satisfaction of the court." 55

§ 333. Witnesses' fees. A witness' fees are, "for each day's attendance in court, or before any officer pursuant to law, one dollar and fifty cents, and five cents a mile for going from his place of residence to the place of trial or hearing, and five

53 U. S. R. S., § 829. The marshal is allowed mileage for actual travel in enabling him to make a return of nulla bona. Anon., Hempst. 450.

54 U. S. R. S.. § 829. See U. S. v. Harmon, 147 U. S. 268; U. S. v. Fletcher, 147 U. S. 664. He is not entitled to constructive mileage, and his actual traveling expenses must be divided among the causes in his hand to serve at the same time. Re Donahue, 8 Bankr. 453. Should the marshal arrest the wrong person, he is not entitled to fees of any kind; nor will he be allowed additional mileage for transporting a prisoner to a particular place by any other than the usual route of travel to that place. Matter of Crittenden, 2 Flippin, 212. He may charge actual expenses for serving a monition instead

of the statutory mileage. The Wavelet, 25 Fed. R. 733.

55 U. S. R. S., § 829. Generally the marshal should not be allowed any charges that are not expressly granted by statute. The John E Mulford, 18 Fed. R. 455; Crofut v. Brandt, 13 Abb. Pr. (N. S.) 132; Bottomley v. U. S., 1 Story, 153; 9 Op. Atty. Gen. 98. When in an admiralty proceeding a reference is ordered to determine the amount of a marshal's fees, the expense must be borne by the claimant, even, it has been held, though the referee awards a sum less than the marshal's claim, and one which the claimant was at all times willing to pay. The Captain John, 41 Fed. R. 147. By 29 St. at L. 181–183, marshals are paid fixed salaries in lieu of fees by the United States.

cents a mile for returning."" 1 When a witness is subpoenaed in more than one cause between the same parties, at the same court, only one travel fee and one per diem compensation are allowed for attendance. Both are taxed in the case first disposed of, after which the per diem attendance fee alone is taxed in the other cases in the order in which they are disposed of. When a witness is detained in prison for want of security for his appearance, he is entitled, in addition to his subsistence, to a compensation of one dollar a day. A witness can be subpoenaed, and must be allowed mileage from and to his residence, in any part of a district, to attend a court held within that district, or from another district if he does not reside more than one hundred miles from the place of trial. The authorities conflict upon the question, whether when a witness in a civil case who resides more than one hundred miles from the place of trial voluntarily attends, his mileage for more than one hundred miles can be taxed.

§ 333. 1 U. S. R. S., § 848. By 27 St. at L. 347, additional mileage is allowed for journeys not by railroad in some western states.

2 U. S. R. S., § 848. 3 U. S. R. S., § 848. 4U. S. R. S., § 848.

5 The Syracuse, 36 Fed. R. 830; Sims v. Schult, 40 Fed. R. 143; Hunter v. Russell, 59 Fed. R. 964. But see Smith v. Chicago & N. W. Ry. Co., 38 Fed. R. 321; Holmes v. Sheridan, 1 Dill. 421, note. See Manufacturing Co. v. Saliers, 6 Cent. L. J. 82.

The mile is computed upon

was held by the District Court for South Carolina that a witness for the United States, voluntarily coming to and attending court on the verbal instructions of the district attorney, is entitled to the per diem and mileage fees, although his residence is out of the district, and more than one hundred miles from the place at which the court is held. In re Williams, 37 Fed. R. 325. It has been held that, when the witness lives without the district, mileage for only one hundred miles can be

6 U. S. R. S., § 876; The Syracuse, taxed in the Second Circuit, Anon., 36 Fed. R. 830.

7 According to the rulings in the First Circuit, a witness is entitled to mileage from his residence, no matter how far distant it may be. Prouty v. Draper, 2 Story, 199; Whipple v. Cumberland Cotton Mfg. Co., 3 Story, 84; Hathaway v. Roach, 2 W. & M. 63; U. S. v. Sanborn, 28 Fed. R. 299; The City of Augusta (C. C. A.), 80 Fed. R. 297, 303. Even when he has not been served with a subpoena. U. S. v. Sanborn, 28 Fed. R. 399. It

5 Blatchf. 134; Eastman v. Sherry, 37 Fed. R. 844; The Vernon, 36 Fed. R. 113; Haines v. McLaughlin, 29 Fed. R. 70; Buffalo Ins. Co. v. Prov. & Stonington S. S. Co., 29 Fed. R. 237; Wooster v. Hill, 44 Fed. R. 819; the Third Circuit, The Progresso, 48 Fed. R. 239; the Fourth Circuit in a civil case, Sloss I. & S. Co. v. South Carolina & G. R. Co., 75 Fed. R. 106; the Sixth Circuit, The Vernon, 36 Fed. R. 113; Burrow v. Kansas C., Ft. S. & M. R. Co., 54 Fed. R. 278; the

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