United States v. Dill, 86 F. 79

United States v. Dill

86 F. 79 | 3rd Cir. | 1898

DALLAS, Circuit Judge.

Upon petition of the executrix of Andrew IL Dill, deceased, late marshal of the Eastern district of Pennsylvania, praying judgment against the United States for the sum of $758.16, claimed’to be due for services rendered and disbursements made by said Andrew II. Dill as such marshal, the district court entered judgment in favor of the plaintiff for the aggregate amount of several of the items claimed. Eight errors have been assigned, the iirst six of which relate, respectively, to ceriain of the items which were allowed, and the last two of which are of a general character, and need not be. separately considered. The first and sixth are not sustained. As to the items to which they reíale, we approve the action of the court below, for the reasons stated in its opinion. The fourth specification, objects to the allowance of a fee of five dollars for the marshal’s attendance upon a jury on October 16, 1887. The service rendered was an absolutely necessary one, bat, being Sunday, the judge was not actually present; and it is contended that therefore the marshal was not entitled to compensation, because, as is argued (liev. St. § 829), the court was not then “in session.” In our opinion, this view of the effect of the statute is not'a reasonable one. We hold, for the purposes of this case, that the necessary suspension of tlie business of the court during Sunday is not to be regarded as a termination of its session, and that the essential duty which in this instance was performed by the marshal'upon that day is within the provision of the fee* bill, which will be found in the section of the Bevised Statutes to which we have referred. The fifth error assigned is to the allowance by Ibe court of “amount actually paid guards of United States prisoners while attending courts.” We thinlc that Ihe view taken of this matter by the learned judge is correct. The charge was not for fees, hut for a contingent expense needfully incurred, and therefore within the terms-of section 830 of the Revised Statutes, as the court below has suffi*84ciently shown. The second and third specifications must be sustained, upon the authority of U. S. v. Tanner, 147 U. S. 661, 13 Sup. Ct. 436, and U. S. v. McMahon, 164 U. S. 87, 17 Sup. Ct. 28. It is ordered that this cause be remanded to the district court, with direction to modify its judgment in pursuance of this determination. No costs in this court are allowed to either party.