552

FEDERAL REPOR1;ER I

vol. 43.

ants took leave to answer the original bill. Some days later in the term, and before an answer was filed, the court vacated the order sustaining the petitionJor a rehearing, its attention having in the mean time been directed to the mandatory character of equity rule 88. Viewing the case as one in which the dedree became final at the September term, 1887, and in which the court had lost all jurisdiction over the defendants for the pnrposeof either vacating or altering the decree, ram of the opinion that the order made at the present term, ,on complainant's motion only, sustaining the petition fora rehearing, was utterly void, and that such order was not validated, or in any nlarlller affected, by the subsequent aotion ofthe defemlants in taking leave to plead. The Case at bar stands on a different footing from that of Toland v. Sprague, 12 Pet. 300, and other like cases, in which a defendant having anclection to appear and defend in a given court, or not to appear, voluntarily entered his appearance therein, and thus waived his' privilege. In the present case the court had no control over the final decree at the time it attenlpted to vacate the same; and, even though it be conceded to complainant'that the court may vacate a decree atter it has become final by cODsent of parties made and entered of record, yet in the case at bar no act was done tantamount to giving such consent. The former orders made in these cases, overruling the petitions for rehearing filed at the March term, 1887, appear on further consideration to have been proper, and they will be permitted to stand.

CHRISMAN

et al. iJ.

HAY

et at.

(Oircuit

1.

0011,rt,

S. D. Iowa;

'. ,

D. October 7,1890.)

VENDOR'S LIEN-QUITCLAIM DEED.

UndllJ; C9de Iowa, § 1940, which that no vendor's lien shall be. enforced after a conveyance by the vendee, unless such lien is reserved by writtell instrument, acknowledged and recorded, or unless such conveyance is made pending suit to foreclose the lien, a quitclaim deed by the vendee is sufficient to bar a vendor's lien not evidenced by writing. .

9.

MORTGAGE-"FoRECJ:,OSURE.

A mortgage for $25,000 on a large number of lots provided for the release of "any five Or more lots at any time hereafter" upon payment of $32 per lot. Held, that purchasers from the mortgagor, after his default in paying the mortgage debt, but before foreclosure suit was 'begun, might have their lots released for $32 each; but that the mortgagor's right to a release on those terms expired when such suit was begun·

.In Equity. Bill for foreclosure of mortgage and enforcement of vendor's lien. Submitted on pleadings and proofs. Flickinger Bro8., for complainants. Stone & Sims, Wright & Baldwin, and Sapp & Pusey, for defendants. SHIRAS, J. In the spring of 1887 the coniplainants, James S. Chrisillan and George W. Robards, were the owners of certain realty in Pot-

CHRISMAN' V. HAY.

553

tawattamie county, Iowa, known 8S "Manawa Park," and in May of that year they sold the same to Hattie A. Hay. To secure the payment of $25,000 of the purchase price, said Hattie A. Hay executed six promissory notes; three thereof, aggregating $8,333.33, being payable to the of George W. Robards, and three, aggregating $16,666.67, being payable to the order of James S. Chrisman, and coming due in one, two; and three years, with interest at the rate of 7 per cent. To secure these notes the said Hattie A. Hay and her husband executed a mortgage upon blocks 1 to 32, inclusive, "of the lots contained in Manawa park as per plat thereof," which contained the following stipulation: "And it isherehy agreed and part of this contract that, upon the payment of $32.80 per lot and accrued interest, said James S. Chrisman and Geo. W. Robards agree to relpase any five or more lots, at any time hereafter when called upon to do so, at expense of, 2nd party." The mortgage also contained a stipulation to the effect ,that, upon a failure to pay any part of the principal or interest, then the whole of the sum secured should become due and payable. August 10, 1889, the present bill was filed for the foreclosure of the mortgage in question; the notes maturing in April, 1887, and 1888, being unpaid. It is also averred in the bill that the premises in the mortgage described, to-wit, the 32 blocks therein named, do not include all the property sold by complainants to said Hattie A. Hay; that the mortgage should have ir..cluded the same, but that, through the misrepresentation of Hattie A. Hay and her husband, complainants accepted the same in the belief that the mortgage covered the entire property; and it is therefore prayed that complainants may be decreed to have a vendor's lien upon that part of the premises not covered by the mortgage. It appears from the evidence that the portion ofthe premises on which the lien is sought to be established, was conveyed by the vendee before this suit was brought, and therefore, under the provisions of section 1940 of the Code of Iowa, the lien is defeated. That section provides that"No v,endor's lien for unpaid purchase money shall be recognized or enforced in any court of law or eqUity after a conveyance by the vendee. unless such lien is reserved by conveyance, mOI'tgage, or olhel' instrument, duly acknowledged and recordpd, or unless such conveyance by the vendee is made aftel' suit lJrought by the vendee, his executor or assign. to enforce such lien." On behalf of complainants, it is urged that the premises sought to be subjected to the lien were conveyed by a mere quitclaim deed, and that the party holdil1gunder the same cannot assert any right thereunder as against complainants. It is true that a party holding under a mere quitclaim deed cann.ot be heard to assert that he is aninnocent purchaser for value. Oliver v. Piatt, 3 How. 410; Mayv. Le Claire, 11 Wall. 217. The statute just cited changes the usual ru.Ie applied to equitable liens for the unpaid purchase price of property sold. In the absence of a statute, it is held that the vendor's lien affects all purchasers from the original vendee who had notice of the existence of the lien when they premises; and hence one holding under a quitclaim deed bought would be held to be charged with notice of the lien.· The statute of Iowa

,554

FEDER.AL ,REPORTER,

vol. 43.

llome written recorded instrument, a ve,ndor'l;lliep,,9ll.nnot be a conveyance ofthe property. The ()f notice is eliminateq from the case·.' The difference in the language,J,1sed in thissection andJhat found in the section in regard to affecting renlestate clearly indicates the different rule to be in construing. the same. declares that "no instrument reaLestate is of any validity against subsequent purchasers for valuable consideration, withoutl}Qtice, unless recorded," ·etc. Under thjssection ll.n instrument ia invalid as against a subsequent ,purchaser for value ·. Under the former seotiO!), lien cannot be after a conveyance 1:IY the vendee. 'fo sustain the',view of complainants, the court, would be compelled to interpolate the words "to a pUrchaser for value without notice II after the word "conveyance," found thel'ein,and this cannot be done. The stat!leclares that,uQ,less the lien is reserved in a written re!Ouch ,Hef,l cannot be enforce(t after,a conveyance of Jbe such conyeyanceis madeai'ter suit for the enforce,JUllot of the ,lien 'has .been, brought; and the court cannot,by mere canatructioll.,; radically th.e meaning of thewordsulled ill.the section· .,As 11 quit9hiim deed will title and ,right actuall,y held by the . it is a the meaning of the section ,regulatif,lg. vendor's li,ens. As..the. ·.premisesupon which it is sought to fll.stcll.tl.vendor's lien were conveyef! to third parties by Mrs. Hay before ,t\Jebr4:t'gillg pf th,is .su;it, such.. QQnveyance defeata the right to a lien, and nel;essary to copsider questi0l1 made in whether could be enfor,ce9- as Mrs. Hay; .it appearing that complainants had taken a mortgage to secure the purchase .Inoney upon part of : .' .' ." . ' . . . T.ne ,eyidepge also' that.. anum ber of tbe lots included in the mortgage have been soI,d. hyMrs: lfay and her husband, and the main qqestionin f!ispu te between: the Ii tigants is as t(), the effept of the agreethe mortgage forthereleasing the lien of the. upon 'pay'mentl;>f the sum of$p.2.S0,llnd per lot. On part of the defendant, Mri;l.Hay, it is contended that the right thus llecured continues ;in force until the expiration of the year of redemption after sale; that, in effect, the mortgage creates a separate lien upon each lot for said sum ,of $32.80, and th,litt,!1-ny one or more of the lots maybe redeep:1ed by paying tpissum,regwCJlessofthetotals1,lmdue·. On part of complainants iUs <;optended.tllattbis stipqlation is in the nature of a privilege, and that, to moot.the payments provided for in the mortgage, she lost ,the right to exercise this privilege, and that parties purchasing Iota from her the date of the failure 'to .pay the first .note position, b1;1t must be deemed to have pursubject to of the mortgage for the full sum due thereon. case, it is clear, that, when the mortgage was executed, ity,1a,s,well qp,d.erstood.b,etween t.he p:;trtiel! that.it 'Was intended ,to sellthelots to having Peen platted for that clear that sales could pe each small

CHRISMAN V. HAY.

555

lot was to rp,main subject to the lien of the entire mortgage debt. The stipulation found in the mortgage was c\i'idently placed therein so that purchasers could be assured that the payment of the sum fixed, i. e., $32,80 and interest, to the mortgagees, would release the lot purchased from the lien of the mortgage. So far as purchasers from Mrs. Hay are concerned, it must be held that all who became such before the bringing of the present suit are entitled to the benefit of the agreement found in the mortgage; and by paying, if not already paid, the fixed price named in the mortgage, are entitled to hold the lots purchased free from the lien of the mortgage. As already stated, the evidence shows that Mrs. Hay has failed to meet the payments she bouno herself to make, and complainants are now compelled totesort to thl:' mortgaged property to secure the sum due them. If it were held that Mrs. Hay could now select out the more valuable lots, and redeem them from .the lien of the mortgage by paying the stipulated sum of $32.80 and interest, it would enable her to secure the benefit of the contract without meeting fully the obligations thereof. The mortgage she executed was, in terms, upon the entire property, to secure the entire debt; but following the granting clause is found the stipulation already cited, which, as already said, was inserted in order to enable her to sell the lots to purchasers, and for the protection of such purchasers. It now appears that she is no longer endeavoring to carry out her contract case is with complainants. The payments are largely in arrears, and ripe for a decree of foreclosure and sl\le. Under such circumstances; it would work'a fraud upon the rights of complainants if it were held that the mortgagor, while wholly in default on her part. should be pennitted to select out the more valuable lots from the mortgagor's tract, and redeem them, leaving the less valuable As between Mrs. Hay and complainants, it must be held that the right to procure the release of portions of the mortgaged premises by paying the price named terminated when the present suit Jor the foreclosure of the mortgage was brought. The complainants are therefore entitled to a decree establishing the amount due them, respectively, upon the notes secured by mortgage; dne credit Leing given for all sums heretofore received from the mortgagors, or from purchasers under them of any portions of the property, Bnd for all sums paid hereafter by parties who had purchased, pottionsof the lots betol'e the bringing of this suit,as hereinafter provided. Such purchasers of lots, in caseS wherein the stipulated price of $32.80 and interest has not yet been paid to the complainants, must pay the same within 30 duys from the date of this decree. At. the expiration of said BO days, the amount then due upon said notes will be computed, and, unless the sum due is by that time fully discharged, atinal decree will be entered, foreclosing said mortgage upon all parts of said realty ill the bill described as shull then remain unredeemed ,b¥ purchasers, and ordering the sale thereof. As the mortgage provides t1llat in case of foreclosure a reasonable attorney's fee' shall be allowed, provision will be made in the final decree for the allo,wanceof such sum :Bs.,the parties may agree upon, or, if such agreement cannot , :. . be had; f,,,..such sum aethe court ,may award."

556

DDERAL REPORTER, vol. 43.

in re RAHRER.

(CXrcuit Court, D. Kansas. October 17,1890.)
INTOXICATING LIQUORS-INTERSTATE COMMERCE-RETROACTIVE EFFECT OF WILSON

Act Congo Aug. 8, 1890, known as the "Wilson Act," and declaring "that all fermented, distilled, or other liquors or liquids, transported into any state or territory, or remaining therem for use, consumption, sale, or storage therein, shall, upon arrival in such state or territory, be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent, and in the same manner, as though such liqnids or liquors had been produced in such state or territory, and shall not be exempt therefrom by reason of peing introduced therein in original packages or otherwise," is permissive, and not mandatory, upQn the different states, and requires additional legislation to be had by II state to bring the provisions of the act into operation within the state. '

ACT.

,This is an application for the writ qf habeas corpus. From the agreed of facts in this case it appears that the petitioner, Charles A. Rahrer, wa,s the agent at Topeka, Kan., of Maynard, Hopkins & Co., of the state of Missouri, doing a general wholesale business at Kansas City, Mo., in the sale of intoxicating liquors. Thepetitioner was appointed agent of said, house in June, 1890, and from that time to the date of his arrest, on the 9th day of August, 1890, he continued. as said agent, to sell said liquors at Topeka, Kan., in the original package; as imported,and not otherwise. For a sale thus made by him on the 9th day of August, 1890, he was arrested by the state authorities, for a violation of wha,t is known as the prohibitory law of the state, and he petitions this court for his discharge therefrom, on the ground that he is restrained of his liberty in violation of his rights under the federal "By order of the United States circuit judge, Hon. JOHN F. PHILIl'S, Judge of the United States district court for the western district or Missouri, sat with Judge FOSTER on the hearing of this petition. David Overmyer and HaZen & Isenhart, for petitioner. L. B. Atty. Gen.; and R. B. Welch, Co. Atty., for respondent. PHILu>S ,and FOllTER, JJ. Two principal questions have been discussed by counsel in this case: Flirst, as to the constitutionality of what ie known,as the "Wilson Bill," passed by congress on the 8th day of gust, and, second, whether, if said bill be valid, the existing prohibitory law of the state Of Kansas applies, or is it needful that additionallegislation should be had by the state to bring into action in the state the prqvisions of the Wilson bill. Under the view taken of the last question/we deem it Ullnecessary to enter upon any discussion of the first prq.ppsition, as with or without the constitutionality of the Wil80P, bill the, result to the petitioner is the same. The first section of the of Kansas is as follows: "Any person or persons who shall sell, or barter in spirituous, malt, vinous, fermented, or other ,intt;>,:x:icating liquors shall be guilty of a misdemeanor;" etc. Gen. St. 1889, par. 2521. Under the decision of the supreme court of the

IN RE RAHRER.

557

United States in LeiIJy v.Hardin, 135 U. S. 100,10 Sup. Ct. Rep. 681, this statute, in so far as it attempted to prohibit the sale of intoxicating liquors imported into the state, and sold by the importer or his agent in the original package, was inoperative and void, being in conflict with section 8, subd. 3, art, 1, of the federal constitution, which places the power exclusi vely in congress to regulate commerce with foreign nations and among the states. Incident to this decision, congress, on the 8th day of August, 1890, enacted the Wilson bill, which declares' "That all fermented, distilled, or other intoxicating liquors or liquids transported into any state or territory, or remaining therein for USE', consumption, sale, or stonlge therein. shall, upon arrival in such state or territory, be subject to the operation and effect of the Ia \\'8 of such state or territory enacted in the exercise of its police powers, to the same extent, and in the same manner, as though such liquids or liquors had been produced in such state or territory. and shall not be exempt therefrom by reason of being introduced . therein in original packages or otherwise. "
It is not claimed nor pretended by the attorneys for the state that the petitioner. previous to the passage of the Wilson bill, was engaged in a business violative of any law of the state; but they do claim that, immediately after the passage of said bill by congress, the petitioner's business became and isa violation of the prohibitory law of the state. So that the proposition stands in this fOmi: On the 7th day of August, 1890, sales made by the petitioner were permissible and lawful under the constitution of the United States, the prohibitory law of the state to the contrary notwithstanding; therefore, if on the 9th day, of August, 1890, the same act of the defendant is taken from under the protection of the constitution, and is a violation of the same prohibitory law of the state, the conclusion would seem to be inevitable that this changed condition of liability is' because of the enachmnt of congress on the 8th day of August, 1890. In brief, the contention of the state is that the act of congress enlarged the scope and operation of the act of'the state legislature, making that which was a legitimate business one day a crime the next, not under any laW' of congress, but against the law of the state: There is nothing in the wording of the act implying that congress assumed such a power, or intended to give such effect to this enactment. At the time congress passed the Wilson bill, it was well known and recognized that the supreme court had decided that such a state prohibitory law was void in so far as the dealer in imported liquors in the original package was concerned; in other words, there was no law, and could be no law, in existence, making such a business a crime. It cannot be assumed that congress desired to introduce into the present police laws of the state an article or subject hitherto not included by those laws. How could congress know that the people of all or any of the states on the 8th day of August 1890, desired to have such subject or article embraced in their police laws? The contention of counsel for the state is that iUs for the several states themselves to determine the scope and purpose of their police laws, and congress has not undertaken to arrogate' to itself any power or control over that subject. In employing the words,:

558

FEDERAL REPORTER,

voL 43.

to the operation of the laws'6f the state,"-congress did .noltrnsethem in a mandatOry, but in a· permissive; sense. The most ardent and :enthusiastic 'advocate of a strong' central government would spurn the idea that congress assumed. to dictate or convey a mandate to the several states in the matter of the exercise of their .police powers. On the contrary, the Wilson bill left it.to the free and untrameled actionoLthe several states to determine whether they would or would not include within their police laws this particular article of commerce. in the Union probably has upon its statutes Sotne police regulation, IQf the traffic in intoxicating liquors. .'l'hese statutes, as a rule, exempt from.their operation, either in express terms or by implication, imported liqaors and their sale in original packages. In some of the exception was expressed, as in Iowa.prohibitory law prior states to 188$. and, the old New York law of185'5,and 10 all cases where not expressly reserved the law oithe land, as declared by the supreme judicial tribunal, supplies the exceptionjthus indicating the general consenBUB that hitherto it was not recognized as among the police powers of the state to regulate or interdict among the states the traffic in imported liquors. The decision in Leisy v. Hardin, swpra, but emphasizes this fact and principle. The.prohibitory law of the state of Kansas where it touched upon interstate· commerce was no 'law at all at the 'time of this enactment nor since. Judge COOLEY says:
"Thet.prm · unconstitutIonal law,' as employed in American jnrisprndence, is a misnouler, and implies a eontratlictiun;thatenactment, which is opposed to the constij.ution.being in fact no law at all." Cavley. Const. Lim. 8.

Again,at i page 188, thiS'same author says:
statllte jeiadJudl(ed to be unconstitutional. It Is as if it bad nl.'ver been.' 'Rights cannot be built up unller it·. Contrllct:i which dl'pend upun it for their are void. I It constitlltes' a protect.ion to rio one whu has actf'd 'under it, lind no one r·an· be punished for having refuspdohedil"nce to it before the dl'u'jsion. WllS made. And what.is true of an act void in toto is true !lIso as to !lily part of ,an act which is, fuund,to be unconstitutional, and which l'on,sequt'Pt1y is to 9.e regarded as having at any tiwe been Vassed and .in legal fqrce," . . .
· " <

'J.

I

,

)

How then can the act of congress in question have the efl'ectand operation claimed' for it by Ithe attorneys tor the Rtllte? For it must be kept in mind that a legislative act in cOnflict with theoonstitution is not only iUegalolFvohlable,but it is absolutely void. It is asil' Ol:lver enacted, auano subsequent'change of the constitution removing the restriction could: validate Hor breathe into it the breath of life. For illustration: :. Section 10, art., 1. of thb federal constitution declares that "no statesb8iU pass ahybill of attainder, ex post facto laws, orlaw impairingtheobligationofC0l'1lracts,"Sllpp0se,a state should pass any of these prohibited fiJCts, and after· its passage the constitlltion should be ameDdedbyt,theassent of the requisite'Jlumber of states and the foregoing section dropped ·altogether, 80 that !there was no longer any restriction,on too states in this particular.. Would any 'ooe contend that a prior in tpeface of the oonstitution; dtladat the time of its

IN RE RARRER.

559

enactment for want of life-giving power, would at once arise from its tomb, and become a living;uctual, lawful thing? Or suppose the legislature of Kansas in these times of imputed financial distress should enact a law providing that, in all cases of judicial sllies of real estate hereafter made on foreclosure of mortgages, there should be a stay of execution fur one year aiter judgment. Such a law wouldseem·fair on its face,aJid ",ould be.ingenerlll terms like that ot'a. prohibitory law of the state.· The courts unquestionably would hold that as to judgments rendered ornlOrtgages .executed prior to such enactments the statute was inoperative and void, because it impaired the obligation of contractll, and was in Vi9hltion of sectiou 10, art. 1, of the constitution; although it might be held to be a valid law as to subsequent contraets, good in part and badil;1 part. Now"suppose the. C9nstitution should be amended, and sectiou,10 should be excluded, could it be maintained that this act of the legislature would become a'valid la wasto prior contracts without furtherlegislation?W'here is the distinction between the, supposed case and tpeQlle at par? In, either cas.e tl1e legislature undertook to legislate on a forbidden to it by the constitution,--in the one case pro-, in, terms; and in the other taken-away altd denied to it by a delegation of all power over the subject.-matter to congress. If the constitutionality e:>f the Wilson bill is to be upheld uponthetheory, ll.B claimed by itsadvo'cates in the debate thereon' ,in the senate of the United States, and in the argument at this hearing, that congress, in the exercise of its power to regulate commerce among the,states and with foreign nations, simply decided or declared that its jurisdiction should be confined to certain of commerce, or. that certain subjects-matter and things whiph may be considered subjects of comluetce should thereafter be excluded from its jurisdiction, under the commercial clause of the constitution, and the traffic in intoxicating liquors should thereafter be .classified "and remitted to the subjects within the police power. of the state, such a law, under every rule.of construction,. must be prospective in its operation. And it must further he conceded that, as the right of the state to treat such an article of commerce as' subject to laws passed by the stlJ.tA, ill the exercise of the police power comes for the first time and alone from the enactment of the Wilson bill, until the state passes a law thereafter forbidding such traffic, ,it has never exercised the power or the discretion, call it what yon may, lodged in it by congress. From this conclusion we see no logical escape. . The operation and scope of criminaHaws should not be enlarged by implioation, but they'should be.strictly construed; and, where there is any well-founded ,doubt llS to any act being a public offense, especially one not in Be, it should not be.declared such, but should rather be construed in favor of the liberty of the citizen. , It follows that the petitioner is entitled to be discharged, and it is accordingl.}' ,80 ordered. '

5&0

I'EDERAL REPOB,TER,

"

vol. 43.

HARMON'll. UNITED STATES.

(Circuit Court, D. Maine. September 23, 1890.)
1. CLAJN.S A.GAINST UNITED STATES-ALLOWANCE-COMPTROLLER'S DECISION.

Act Congo March 3. 1887, c. 359, (24 St. 505,) § 2, /lives the circuit and district couns concurrent }.urisdiction, within' certain limits as to amount, of all mattel's which by section 1 'the court of claims shall have jurisdiction to hear and den including allolaims founded, on any law of congress. except for pensions, or on any contract with ,the government: "prOVided, however, that nothing in this section shall be construed as giVing to either of the courts herein mentioned jurisdiction to hear and determine claims * * * which have heretofore been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same. n By Rev. E!t. u. S. § 269,.it is made the duty of the first comptroller o,f the treasury "to supenntend the adJustment and preservation of the p,lblic accounts, SUbject to his revision. n Section 191 provides that "the balances Which may from time to time be stated by the aUditor, and certified to the heads of depll,rtments the commissioner of customs, or the comptrollers of the treasury, upon the settlement of public accounts, shall not be subject to be changed or modified by the heads of departments, but shall be conclusive upon the executive branch oftha gevernmel1t, and be subject to ,:&vision onl;l' congress or the proper courts. It Bela, that the proviso must be limited to a reJection of a claim, or an adverse report thereon, by a court. department or commission which determines the rights 01 parties, and therefore the disallowance of, a marshal's account for feell by ,the first comptroller of the treasury.was not within the proviso, as his decision was conclusive only within the executive department. A marshal is entitled to be reimbursed for money paid, with the approval of the attorney general, to whom Rev. St. U. S. § 368, gives general superVisory power over the ,accounts of the court oftl.oers, on'a requisition of the district attorney, for blanks for the necessary use of the district attorney.
"

,2.

UNITED,B:l'ATEB

8. SAHE-MILBAGE-ATTENDING COURT.

4:

Under Rev. St. U. S. §,829, cl. 24, allowing a marshal "for traveling from his residence io the place of holding court, to attend a term thereof, 10 cents a mile for going only," the marshal is not restrictedto a single travel at each term; but, where court adjourns over one or more days, he may return home, and charge travel for going to attend the term at the day to which it is adjourned. He may.also charge travel for going to each special term.

SA.ME-SERVING PROCESS.

Rev. at. U. S. § 82\1, c1. 25, allowing a marshal" for travel, in going only, to serve ally,process, warrant, attachment, or other Writ. including writs of subprena 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 pe,rson is served therewittt, to the place.of service which is most remote, adding thereto the extra wpicli is necessary to serve it on the others," and providing, "But, when IDore t,bll ll two writs ofa,nyklnd 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," where the marshal serves several precepts against different persons for different causes, he is entitled to full travel on each, though they are all served on the same trip.
' '

5. .

SAHE-Tr.A.NSPORTATION OJ' PRIaONIl:R.

The claUSe afthe fee-bill allowing for travel in going only as a oompensation for actual travel in and retQ,rning beinK independent of the clause allowing fees for transportation of oftl.cer ,and prisoner only while the oftl.cer has the prisoner in cUlltoaYi he is entitleq botb. to transportation for himself and prisoner and to travel in going to serve a warrant of remQval or warrant to commit.
Wl\lTS. :' " , .

6. BA.!II;E-.8EltVING

ActCong. Feb. 22, 1875, c. 95, II 7, atter making certain provisions for the allowance of the accounts of attorneys, marshals, and clerks, fur·ther prOVides that "no SUch olliCllr or to .a!lovrance for lDileage or travel not actually anll. necessarily performed under prOVISions of existing law." Held, tbat the act did not preclude a marshal from full mileage ,on each of.two of ·more writs served at the same time and place on different persons. but applied only to cases in which there was no actual travel, as where a writ was Bent through the mail to be served by a deputy near the place of service.