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Opinion of the Court.

shot under the influence of passion and without malice, cannot be properly regarded as a question of law.

A judge may be entirely satisfied from the whole evidence in the case that the person doing the killing was actuated by malice; that he was not in any such passion as to lower the grade of the crime from murder to manslaughter by reason of any absence of malice; and yet if there be any evidence fairly tending to bear upon the issue of manslaughter, it is the province of the jury to determine from all the evidence what the condition of mind was, and to say whether the crime was murder or manslaughter.

It is also objected that as all the testimony is not set forth in the bill of exceptions, it must be assumed there was some which was given on the trial that would show there was no issue of manslaughter in the case. The evidence which has been returned does, in our opinion, show the existence of such an issue, and if there were other and further evidence of a different nature, which is not in the bill of exceptions, the question as to which should be credited was for the jury, and should not have been taken from it by the court. The plaintiff in error may have been guilty of murder, there was certainly sufficient evidence on that issue to render it necessary to submit it to the jury. We have no power and no inclination to pass upon that question of fact. We only decide that the question as to the grade of the crime, whether murder or manslaughter, should have been submitted to the jury as well. as the question of self defence.

For the error in refusing to do so, the judgment of conviction must be

Reversed, and the cause remanded to the court below with instructions to grant a new trial.

Opinion of the Court.

UNITED STATES v. JULIAN.

APPEAL FROM THE COURT OF CLAIMS.

No. 925. Submitted March 16, 1896.- - Decided April 13, 1896.

The jurat attached to a deposition taken before a commissioner of a Circuit Court of the United States is not a certificate to the deposition in the ordinary sense of the term, but a certificate of the fact that the witness appeared before the commissioner, and was sworn to the truth of what he had stated; and the commissioner is entitled to a separate fee therefor.

THIS was a petition for fees, as commissioner of the Circuit Court for the Middle District of Tennessee.

The claim included a large number of items, but the only point in controversy before this court is, whether petitioner was entitled to fifteen cents for each jurat or certificate, appended to depositions taken by him as such commissioner. The total number of jurats so appended was 238, and the total charge therefor was $35.70.

The Court of Claims allowed this item, and the government appealed.

Mr. Assistant Attorney General Dodge for appellants.

Mr. George A. King for appellee.

MR. JUSTICE BROWN delivered the opinion of the court.

This case involves the construction of that paragraph of Rev. Stat., § 847, which allows to commissioners "for issuing any warrant or writ, and for any other service, the same compensation as is allowed to clerks for like services;" and the paragraphs of § 828, which allow to clerks "for taking and certifying depositions to file, twenty cents for each folio of one hundred words;" and "for making any record, certifi cate, return or report, for each folio, fifteen cents."

In the case of United States v. Ewing, 140 U. S. 142, 146, 4, and in United States v. Barber, 140 U. S. 164, 165, ¶ 1, we held a commissioner to be entitled to twenty cents per

Opinion of the Court.

folio for drawing complaints in criminal cases, as for "taking and certifying depositions to file," where the local practice required a magistrate to reduce the examination of the complaining witnesses to writing. In the latter case (p. 166) we also held that the petitioner should be allowed a fee of ten cents for each oath administered in connection with these complaints, and fifteen cents for each jurat, as for a certificate; and also, (p. 168, ¶ 7,) that the charge per folio for depositions taken on examinations of prisoners was allowable, upon the same principle upon which we allowed it for preparing complaints. It follows from this that the commissioner is also entitled to fifteen cents per folio for the jurat to each deposition. The certificate referred to in the words "taking and certifying depositions to file," is that required by sections 863, 864, 865, 866 and 873, to be appended to depositions taken de bene esse in civil cases depending in the District or Circuit Court, which includes the circumstances with reference to the witness authorizing his deposition to be taken; the official character of the person taking it; the proof of reasonable notice to the opposite party; the fact that the witness was cautioned and sworn to testify to the whole truth, and other similar requirements. It was probably more particularly with reference to this class of depositions that the fee "for taking and certifying depositions" was inserted. The certificate referred to is always appended to depositions or a series of depositions taken de bene esse, is often of considerable length, and is required by repeated rulings of this and the Circuit Courts. Bell v. Morrison, 1 Pet. 351; Cook v. Burnley, 11 Wall. 659; Harris v. Wall, 7 How. 693; Whitford v. Clark County, 119 U. S. 522; Tooker v. Thompson, 3 McLean, 92; Voce v. Lawrence, 4 McLean, 203.

The jurat is not a certificate to a deposition in the ordinary sense of the term, but a certificate of the fact that the witness appeared before the commissioner, and was sworn to the truth of what he had stated. We think the design of the statute was to allow a separate fee therefor.

The judgment of the Court of Claims is, therefore,

Affirmed.

Statement of the Case.

HOLLANDER v. FECHHEIMER.

APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

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The jurisdiction of this court is to be determined by the amount directly involved in the decree appealed from, and not by any contingent demand which may be recovered, or any contingent loss which may be sustained by either party, through the probative effect of the decree, however direct its bearing upon such contingency.

A decree in favor of plaintiff, but remanding the case to the trial court for further proceedings to ascertain the amount of the indebtedness, is not a final decree from which appeal can be taken.

THIS was a bill in equity filed by the firm of Fechheimer, Goodkind & Co., against Justus Hollander, a judgment debtor, Samuel Bieber, his assignee, and a number of preferred creditors under such assignment, alleging that the assignment was fraudulent and void, and praying that Hollander might be required to disclose the amount of his indebtedness to each of his preferred creditors; the amount of goods purchased by him immediately prior to his failure, and the names of the persons from whom purchased; the amount of his indebtedness to each of his creditors before making such purchases; the amount and character of goods he had in stock prior to his last purchases, and sundry other particulars; the amount of property turned over to Bieber under the assignment; and also praying for the appointment of a receiver; the setting aside of the assignment; the payment of the plaintiffs' claim, and an injunction against the defendant Bieber from further proceeding under the assignment.

The bill set forth, as the basis of plaintiffs' right to sue, an indebtedness in the sum of $1000, by judgment recovered in the Supreme Court of the District of Columbia, upon which execution had been issued and returned nulla bona — a note for $1000, and goods purchased to the amount of $1846.50.

Demurrers were filed to this bill by Bieber and certain of the preferred creditors, which were sustained, and the bill

Opinion of the Court.

dismissed. Upon appeal to the general term the decree of the special term dismissing the bill was reversed, and the case remanded for further proceedings. Answers were subsequently filed by the several defendants, and testimony taken; and upon a hearing upon pleadings and proofs the bill was again dismissed, and an appeal taken to the general term, which again reversed the decree of the special term, declared the assignment to be fraudulent and void, and decreed that the complainants recover from the defendant Bieber the amount of their judgment set out in the bill of complaint, together with their costs, to be taxed by the clerk, and that the case be remanded to the special term for further proceedings. From this decree defendant appealed to this court.

Mr. Leon Tobriner for appellants. Mr. A. S. Worthington was on his brief.

Mr. James Francis Smith and Mr. Henry E. Davis for appellees.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

It is clear that this appeal must be dismissed for the want of jurisdiction. The decree from which the appeal was taken declares the assignment from Hollander to the defendant Bieber to be fraudulent and void as against the complainants, and "that said complainants do have and recover from the said defendant Bieber the amount of their judgment set out in the bill of complaint, together with their costs in this cause, to be taxed by the clerk; and it is further ordered that this cause be remanded to the special term for further proceedings." The amount of the judgment referred to in the decree was $1000, with interest at 7 per cent from February 15, 1886, and costs, and the total amount due thereon at the time the decree was rendered was but $1454.11.

It is true that the bill alleged a further indebtedness upon a note for $1000 and an open account of $1846.50; and it is claimed that at the time the decree was rendered there was

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