United States v. Cogswell

STORY, Circuit Justice. The first item depends upon the construction of the first section of the act of 1799, c. 125. § 1 [1 Story’s Laws, 500; 1 Stat. 624, c. 19], by which it is provided, that the compensation of the marshals of the districts of the United States shall .(among other things) be, “for summoning each grand and other jury, four dollars; provided, that in no case shall the fees for summoning jurors to any one court exceed fifty dollars; and in those states where jurors, by the laws of the state, are drawn by constables, or other officers of corporate towns or places, by lot, the marshal shall receive, for the use of the officers, employed in summoning the jurors, and returning the venire, the sum of two dollars, and for his own trouble, in distributing the venire, two dollars.” Now, the latter part of this proviso, applies directly to the mode of drawing jurors in the district of New Hampshire, ac-cording to the state laws, which have been adopted by the act of congress, of May 13, 1800, c. 61 [1 Story’s Laws. 792; 2 Stat. 82]. By the state laws, jurors are.to be drawn from the jury boxes of the town by lot, at a meeting to be called for that purpose, in the presence of the official functionaries of the town. The respective venires for jurors from each town, are to be served on the town clerk. And by the practice of the courts of the United States, a grand or general venire, is addressed to the marshal, to serve the proper subordinate venires on the respective clerks of the towns. The item, now claimed by the defendant, and controverted by the United States, is for the service of these venires on the town clerks. Upon this statement, it seems difficult to find any real ground for controversy. The statute seems to us to provide directly for the very case; and, therefore, we are- of opinion, that the claim ought to be allowed. The next item, is for rent paid for an office for the clerk of the courts of the United States. This seems to us. a just charge against the United States, as an incidental expenditure, connected with the holding of the courts of the United States, and the due administration of justice. The next item, is for travel and attendance at the monthly rules, held in the clerk’s office, under the rules of the supreme court of — 489 — the United States, passed at February term. 1822. It is admitted, that the defendant, as marshal, did not, in fact, either travel to, or attend these rules at the clerk’s office; and. therefore, his claim is for a constructive right, or a constructive travel and attendance, at the rules. But we are of opinion, that this charge, whatever might be its validity, if the marshal had actually travelled and. attended at these rules is, under the circumstances, wholly inadmissible. To justify the charge, an actual travel and attendance are, in our judgment, indispensable. The remaining items require no commentary. They are the mere personal expenses of the marshal, incurred by him for the purpose of establishing and settling his accounts against .the government. They may. for aught we know, constitute a very sound claim upon the abstract justice and equity of the government, but they are not such as can be taken notice of, or enforced, by courts of justice. Of course, upon these items, which are allowed by the court, the defendant has a fair title to interest. This,- indeed, is not objected to on the part of the government. Upon this intimation of the opinion of the court, a verdict was taken for the defendant, subject to tile final audit of the account, upon a reference to the clerk of the court, as an auditor.