FARMERS' LOAN &: TRUST CO. V. DART.

451

as Barker is concerned, and he should have been made a party to the appeal, in order to give us jurisdiction thereof. The appeal is dismissed, without prejudice and without costs.

FARMERS' LOAN & TRUST CO. et al. v. DART. (Circuit Court of Appeals, Fifth Circuit. No. 664.
CLERKS OF CIRCUIT COURTS-COMMISSIONS-FuNDS IN HANDS OF RECEIVER.

December 20, 1898.)

receiver under orders of the court, which never came Into the possession of the clerk, and for which he was not responsible.

§ 828, on moneys of a receivership, deposited and paid out directly by the

A clerk of a circuit court is not entitled to a commission, under Rev. St.

Appeal from the Circuit C<lUrt of the United States for the Eastern District of Texas.
In April, the Farmers' Loan & Trust Company filed its bill to foreclose a first mortgage on the Waco & Northwestern Division of the Houston & Texas Central Railway Company. The property covered by the mortgage was placed in the hands of a receiver. The foreclosure proceedings were protracted, and the property was finally sold at a foreclosure sale. During the proceedings the railroad was operated by the receiver, and a large amount of surplus revenues accrued from the operation of the road, and from the rental and sale of lands covered by the mortgage. By order of the court the surplUS revenues were deposited from time to time with the assistant treasurer of the United States at New O!"leans, La. On June 7, 1897, with a view to complete the sale of the property and wind up the receivership, the court made an orde!" of reference to the special maste!" in the cause. He was directed to ascertain the amount of funds to the credit of the cause, the sou!"ces from which the funds we!"e !"eceived, the amount and cha!"acter of all outstanding claims, the distributive share of each bond, the costs and charges still unpaid, and other matters necessa!"y for a final settlement of the receiver-ship. A full history of the litigation was given on p!"evious appeals to this comt. 24 C. C. A. 487, 79 Fed. 202; 24 C. C. A. 495, 79 Fed. 210; 24 C. C. A. 497, 79 Fed. 212; 24 C. C. A.. 500, 79 Fed. 215; 24 C. C. A.. 506, 79 Fed. 222. The clerk, in transmitting to the special maste!" the o!"der of reference of June 7, 1897, wrote a lette!" to the special master, accompanied by a statement and certificate purporting to show the deposits in the registry of the court in the cause, and also a bill of costs by which the clerk allowed himself 1 per cent. on $G50,212.16, the amount of the deposits. The clerk, in his lette!" to the special master, stated that the. bill of costs was not intended to be refer!"ed to him for taxation, as he (the clerk) had taxed the costs in accordance with the power confened on him by law, but that the bill of costs was forwa!"ded as being one of the items included in the !"eference. The solicitors fo!" ce!"tain intervening bondholders objected to the bill of costs before the special master on the ground that the claim of the clerk was not due unde!" the act of congress fixing the compensation and fees of clerks in such matters, and especially on the ground that the money referred to had not been received, kept, and paid out by thf' clerk. The special master, in his report, after stating the manner in which the bill of costs had reached him, and the declaration of the clerk that the bill of costs had not been transmitted to the special master for taxation, made no finding as to the claim, "inasmuch as this involves a question of law not specially refened to the master." After the report of the special master had been filed in the lower court. the clerk moved the court to enter an order for the payment of his claim. This was opposed by the Farmers' Loan & Trust Company, complainant in the cause, and by the intervening bondholders, and they moved for a retaxation of the costs. The lowel court rendered a decree allowing the clerk the full amount of his

peaJea.

Lper cent.l>D "

,and the opposIng parties have api

i " .

L. forM;oranBros. and Henry K:.McHarg. J. P. Blair, for Farmers' Loan & Trust Co. John M. Duncan, for appellee. , Before PARDEE, Circuit Judge, and SWAYNE andVAllL.A.J.."WE, District Judges.'" "
I ,

PARLANGE, District (after stating the as above). A bill having been filed to foreclose a mortgage on the Waco & Northwestern Division oftbe Houston & Texas Central Railway Oompany, .s: receiver WaS a:pp()ip,ted, who cOl,ltinued the operation of the road.. ,While the foQl\d tpus being operated by the receiver, surplus revenues from the earnings of the road,"lIlnd rentals and pro· ceeds of the sale of bY- the mortgage, acprued, and the ago gregate of those moneys involved in this cause, is $65,0,212.16, upon which the clerk has taxed to himself, and. claims, under. section 828, Rev. St.U.S., acoffimilllsl:6nof 1 pel' cent. The .first item of this deposited. on December; 14, 1892, by aggregate is one f?r Alfred ;A.beel, recelve,r,)n/tceordance wlth an order of court dated December 6, 1892. This seems to be for moneys which, when a changeot receiver took-place, were transferred, by an order of court, fvom one, receiver't6 the other... These money$, after being receiveq by the second appear to have been deposited in court by him" It is clear that the moneys came into the hands of the clerk, who then deposited them with the United States assistant treasurer at New Orleans,'subject to his check in his official capac· ity. The assignment o.f errors and the briefs of appellants do not seem to.be aimed so directJy at this item of $100,000 as. to the other moneys in,volved. The commission provided by section 828, Rev. St. U. S., is to compensatethe clerk for his services, trouble, and responsibility iQ"recei,ving, keeping and paying out money, in pur· suance of any!!tatute or order of court." Judge Pardee, in the case of Easton v. Ra,ilwayCo., 44 .Fed. 718, called attention to the fact that there has been a material in the fee bill on the point herein involved.. Formerly the commission was allowed upon mono eys deposfte<l in court,.. "While at present the commission is for the services and liability of the clerk in taking possession of, preserv· ing, and tnrning over the funds. As to the item of $100,000 above mentioned, the elerk'sC1aim is valid, but his contention as to the sllstained. 'Appellee's brief states and adother mits that the moneys, qJl:<:ept the item of $100,000, were deposited by receiver directly with the assistant treasurer. They were, or are to be, paid out by the receiver, uilder orders of cou rt directing him so to do. They never came intothe possession of the clerk. Even iftheyWere or are in, the registry of the court, we have shown that thepresept law does not allow a clerk commission on money merely because it has gone into the registry of the court. The clerk never incurred any responsibility with regard to the funds, and he has not,RD<l, under the circumstances, could not have, paid them out. Thep!J,lyauthority cited on appellee's brief in support of his
i

HOUGHTON V. HUBBELL.

claim is the above-cited case of Easton v. Railway Co. This was a case in which the court had decreed the sale of mortgaged railroad property, and required purchasers to pay earnest money into court at the time of sale; the earnest money to be returned, if the sale was not confirmed. Subsequently, by consent of parties, the was modified so as to allow a certified bank check to be given in lieu of cash, and the master commissioner was directed to deposit the same with a trust company. Upon that state of facts the court held that the clerk was not entitled to a commission. In the course of its opinion the court said:
"If it [the earnest money] bad been deposited in the registry of the court, as provided in the original decree, and the sale had been set aside, it could not have been restored in its entirety to its owner, because in that case the fee would have attached, and properly so; for then he would have had the responsibility of receiving, keeping, and paying out the money."

This language is relied on by the appellee to sustain his claim. But it is clear that it does not do so. When the court saiti that" if the earnest money had been deposited in court, the clerk would have been responsible for receiving, keeping, and paying out the money, it is obvious that the court contemplated that he would have performed those serV"ices, and could not have meant, in the connection in which the language was used, that he would have been responsible if he had not performed the services. Of course, if the earnest money had been paid into court, if it had come into the clerk's possession, if he had deposited it, and if he had subsequently paid it out under the order of the court, his commission would have attached. But such a case would be entirely different from the one now being considered. See Easton v. Railway Co., supra; Insurance Co. v. Quinn, 69 Fed. 462; In re Goodrich, 4 Dill. 230, Fed. Cas. No. 5,541, and cases therein cited. The judgment of the lower court is amended so as to allow the clerk, appellee, a commission of 1 per cent. on $100,000, and rejecting his claim as to any other moneys; and said judgment, as hereby amended, is affirmed.

HOUGHTON v. HUBBELL.

(Circuit Court of Appeals, First CirCUit. January 19, 1899.) , No. 255.
NATIONAL BANKS-SurTS BY RECEIVER AGAINST SHAREHOLDERS-LIABILITY OF REAL OWNER OF STOCK.

The real owner of shares of stock in a national bank, Which, by his procurement or permission, stand on the books of the bank in the name of an agent, and have never been in his own name, may be charged as a shareholder for an assessment made on the bank's insolvency, and the receiver may bring an action at law for the collection of such assessment directly against him, without regard to the liability of the agent.!

In Error to the Circuit Court of the United States for the District of Massachusetts.
1 For liability of real owner of stock in national bank, see note to Beal v. Bank, 15 C. C· .A. 130.