destroys his right to proceed; and a sale of land after such removal is null and void. United States v. Bank of Arkansas, Hemp., 460.

§ 317. The removal of a marshal would not affect his right to sell personal property in his possession and for which he is answerable. Ibid.

§ 318. Deputy.-A person was regularly appointed by a late marshal, and duly sworn as a deputy, but no return was made by the marshal to the district judge of the appointment. Such omission held not to affect the legality of the service of subpoenas nor the right of the deputy to his fees. Wintermute v. Smith, 1 Bond., 210.

§ 319. A deputy marshal is an officer of the United States, authorized to serve process, and resistance to him is prohibited by the twenty-second section of act of April 30, 1790 (1 U. S. Stat. at Large, 117). United States v. Tinklepaugh, 3 Blatch., 425.

§ 320. A prison-bounds bond may be assigned by a deputy marshal. Scott v. Wise, 1 Cr. C. C., 473.

§ 321. A sale of treasury notes by a marshal for currency, at eight per cent. premium, and a payment of his deputy in such currency, is a violation of the law. United States v. Patterson, 3 McL, 53.

§ 322. Where a writ of ca. resp. comes to the hands of a deputy marshal, who arrests the debtor, and the debtor thereupon pays to the deputy the amount of the debt for which he was sued, and the officer discharges the debtor from custody and returns the writ, "debt and costs satisfied," this is not an official act which binds the principal. The deputy marshal is a mere ministerial officer, and he has no right to adjust the debt and make himself responsible to the plaintiff. He is bound to pursue the mandate of the writ, and that requires him to arrest the debtor and take bail. The discharge of the debtor from custody without taking bail is a misfeasance in office for which his principal, the marshal, is responsible; but he is only responsible to the extent of the injury done to the plaintiff. If the return of the deputy shows that no bail was taken, and the plaintiff, by taking out other process, could have secured his debt, the loss of the debt to the plaintiff is not the necessary legal consequence of the conduct of the deputy, and no injury, in a legal sense, is done to the plaintiff. United States v. Moore, 2 Marsh., 317.

§ 323. A plaintiff has a right to direct a deputy marshal to receive a certain description of money in satisfaction of an execution; but the deputy then acts as agent of the plaintiff and not of the marshal. If, therefore, the plaintiff, when he does this, gives to the deputy marshal other instructions, which are disobeyed, the marshal himself is not responsible, but the plaintiff must look to the deputy. Gwin v. Buchanan, 4 How., 1.

§ 324. A deputy marshal is an officer of the court, amenable to its jurisdiction for malfeasance in office by summary order or attachment for contempt. The Bark Laurens, Abb. Adm., 508; United States v. The Brig Lawrence, 7 N. Y. Leg. Obs., 174.

§ 325. A marshal is answerable for the acts of his deputy done colore officii although without his knowledge or recognition; and in respect to moneys collected or taken by the deputy, the party entitled to them can have his remedy by process of attachment against the marshal personally. The Bark Laurens, Abb. Adm., 508; United States v. The Brig Lawrence, 7 N. Y. Leg. Obs., 174.

§ 326. A marshal is responsible for the defaults and misfeasances of his deputies, but the keeper of a state jail is neither in fact nor in law his deputy, and the marshal is not liable for the escape of a prisoner committed to the custody of such keeper. Randolph v. Donaldson,* 9 Cr., 76.

§ 327. A marshal may appoint a deputy to perform a particular service upon general principles; and under section 788 of the Revised Statutes, where by the laws of a state a sheriff may appoint a person to perform a special service, the marshal has the same authority. Such appointee is an officer de facto, and a person summoned by him cannot dispute his authority for the reason that he has not taken the oath of office. Hyman v. Chales,* 12 Fed. R., 855. § 328. A marshal is responsible for the acts of his deputies while acting in the line of their duty, but beyond this he is not responsible. Where a deputy received the principal part of the amount due on a judgment, after the return of the execution, when he had no authority to receive it, the marshal cannot be held responsible. But as the deputy has received the money under the assumed authority of the process of the court, he may be ordered to pay it over to the plaintiff, and in case of his refusal so to do he may be attached. Bagley v. Yates,* 3 McL., 465.

§ 329. A marshal is answerable for the misconduct of his deputy. If the deputy, who served a writ of replevin and took the statutory bond, erased the name of the principal without the direction of some one having authority, he violated a plain duty and his principal is liable. But if the attorney for the plaintiff gives such directions to the deputy as are calculated to mislead him, the marshal is not chargeable. So, where the deputy marshal took a

bond offered by the defendant, signed by himself and a surety, to the plaintiff's attorney, who objected to the surety and stated that the bond would be satisfactory with a certain surety's name on it, but that he would not have the plaintiff on the bond at all, and the deputy, after the bond had been executed by the proposed surety, told the plaintiff that his name was not desired on the bond at all, and the plaintiff, in the deputy's presence, erased his name, thus rendering the bond void, it was held that if the erasure was found by the jury to have been made in consequence of the direction of the attorney, the marshal would not be liable. Rogers r. The Marshal, 1 Wall., 644.

§ 330. A marshal may depute a person specially to execute a process or arrest a vessel. The Tug E. W. Gorgas, 10 Ben., 460.

§ 331. Under the laws of New York, a sheriff or under-sheriff, by instrument in writing, may depute persons to do particular acts, which term includes the service of writs, and a marshal of a court of the United States has the same power. Ibid.

§ 332. Powers of a sheriff.- Under section 788, Revised Statutes, the marshals in each state, in executing the laws of the United States, have the same powers as sheriffs in executing the laws of the state. United States v. Harden, 10 Fed. R., 802; 4 Hughes, 455.

§ 333. It seems that by virtue of section 788 of the Revised Statutes, which is a re-enactment of statutes 1861, chapter 25, section 7 (12 Stat., p. 282), and that again a re-enactment of statutes 1795, chapter 36, section 9 (1 Stat., p. 425), marshals have such powers as sheriffs had on the 29th day of July, 1861, the date of the passage of said act of 1861, and such powers are not affected by a restrictive state statute passed in 1877. Such acts of congress are, however, empowering and not restrictive statutes, and it is not within their purview to take away or limit the powers of important executive officers. The Tug E. W. Gorgas, 10 Ben., 460.

V. MISCELLANEOUS.

§ 334. Failure to take oath.- Under the ordinance of the constitution of Missouri, popularly called the "ousting ordinance," providing for the taking of an oath of loyalty by officers of the state, or of a municipal corporation, and vacating the offices of those who failed to do so, the officers of the city of Ste Genevieve having failed to take the prescribed oath, their official existence came to an end. Welch v. Ste Genevieve, 10 Am. L. Reg. (N. S.), 512; 1 Dill., 130; 14 Int. Rev. Rec., 93.

§ 335. Where a notary public falsely and corruptly certifies to the execution of a deed by a party not before him, he is liable in damages to the purchaser of property under such deed, but not to his grantee or assignee. Ware v. Brown, 2 Bond, 267.

§ 336. Wrongful acts.- Where gold certificates were taken to the sub-treasury to be exchanged for gold, and, upon a representation that it was necessary, were left over night for examination, and the officer receiving said certificates treated them as though received from a party indebted to him for government funds lent said party, and canceled and transmitted them to Washington, the government is not relieved of its, obligation incurred to the owner of the certificates to pay their amount in coin, by the wrongful act of its officer subsequent to the receipt of said certificates. Bank of Boston v. United States, 10 Ct. Cl., 519; United States v. State Bank, 6 Otto, 30.

$337. The collector of a port is liable where goods, deposited in a warehouse under the act of August 6, 1846 (9 U. S. Stat. at Large, 53), are lost in consequence of his personal negligence. Such negligence cannot be inferred from the mere loss of the goods. He is not liable for the negligence of his subordinates. Quere, whether in an action against the storekeeper or subordinate officer in charge of the goods, his negligence could be inferred from their loss. Brissac v. Lawrence, 2 Blatch., 121.

$338. The secretary of war had no authority in 1818, under any act of congress, or the army regulations, to appoint an agent of fortifications. United States v. Maurice, 2 Marsh, 97 ( 8-17).

§ 339. Commissioners or board of supervisors of a county, in the exercise of their general powers as such, have no authority to subscribe stock to railroads, and bind the people of the county to pay bonds issued for that purpose, without special authority conferred upon them by the legislature. Sheboygan Co. v. Parker, 3 Wall., 93.

340. The presentation of a false claim against the government to a district or circuit court for approval is a presentation of such claim to an officer in the civil service of the United States, within the meaning of section 5438, Revised Statutes. United States v. Strobach, 4 Woods, 592.

§ 341. A commissioner has no authority to make the warrant issued by him returnable before another commissioner. In re Crittenden, 2 Flip., 212.

§ 342. The power given to pilot commissioners by the act of the legislature of Oregon of October 28, 1868, to examine pilots, and grant or refuse them licenses, cannot be delegated. The California, 1 Saw., 596.

§ 343. Tax commissioners.- An act of congress of July 20, 1868 (15 Stats. at Large, 123), declaring "that the acts and proceedings which have been had or performed by any two of the tax commissioners, in and for the state of Arkansas, shall have the same force and effect as if had and performed by all three of said commissioners," does not give validity to the acts of two commissioners unless there were three commissioners in office. Schenk v. Peay, 1 Dill., 267; 1 Ch. L. N., 363; 10.Int. Rev. Rec., 54.

§ 344. The shipping commissioner has the power to appoint clerks and deputies. under section 4505, Revised Statutes. In re Accounts of the Shipping Commissioner of the Port of New York, 16 Blatch., 92.

§ 345. A magistrate is a person intrusted with power, as a public civil officer. Gordon v. Hobart, 2 Sumn., 401.

§ 346. An overseer of a road in Virginia, who has not been notified of his appointment, is not liable to the penalty of the act of Virginia of January 5, 1786. United States v. Custis, 1 Cr. C. C., 417.

$347. A justice of the peace in the District of Columbia is not an officer, judicial or executive, of the government of the United States, and is liable to militia duty. Wise v. Withers, 1 Cr. C. C., 262.

$348. A judgment against an officer cannot be binding upon the state as a matter adjudicated between the state and the plaintiff. Adams v. Bradley, 5 Saw., 217.

§ 349. The publication of advertisements by the superintendent of Indian affairs for Oregon in two newspapers, when such publication was authorized by the general order signed by the commissioner of Indian affairs and directed by the predecessor of the superintendent, was held to be authorized by the secretary of interior under section 3828 of the Revised Statutes, and the expense was allowed as a credit to said superintendent. United States v. Odeneal,* 7 Saw.. 451.

$ 350. A levee board being incorporated by a statute of the state of Mississippi, and the offices of commissioners, secretary and treasurer of said board being abolished by a subsequent act of the legislature, and the auditor of public accounts and the treasurer of the state being constituted and appointed the levee board by said act, "it being the intent and purpose of this act to substitute the auditor of the state and the treasurer thereof, ex officio, as such commissioners, secretary and treasurer" of said board, etc., it was held that the statute, while it abolished the offices of the commissioners who previously constituted the bond, did not dissolve or extinguish the corporation, but merely substituted the state treasurer and the auditor of accounts as the members of that corporation, and that a suit having been commenced against the old board could be prosecuted against the new one, and that a motion to dismiss the bill because the levee board had been abolished should be overruled, and that the treasurer and auditor describing themselves by their individual names as treasurer and auditor respectively, and also as ex officio the levee board, could appeal from a final decree in said suit. Hemingway v. Stansell, 16 Otto, 399.

$351. Under the acts of congress the postmaster-general has power to discontinue a postoffice, notwithstanding the postmaster has been appointed by the president, by and with the advice and consent of the senate; the incumbent accepting the appointment subject to the legal contingency that the postoffice may be discontinued. In such event he ceases to be postmaster, because there is no longer a postoffice at the place. Ware v. United States, 4 Wall., 617.

§ 352. An appointment of a judge, by a military governor of Louisiana, during the war is purely military, and is subject to revocation whenever in the judgment of the military governor it is either necessary or expedient. When the constitution was adopted during the war, under military orders, and Hahn was elected governor, he had as military governor the same right as his predecessor to revoke the appointment. If the situation was changed, and the civil constitution of the state was in full operation, independent of military control, the authority derived from the appointment of the military governor ceased of necessity. Handlin v. Wickliffe, 12 Wall., 173.

§ 353. Custom-house officers have an inchoate interest in a forfeiture upon a seizure, but it may be defeated by a remission by the secretary of the treasury. They cannot be said to have a vested right upon condemnation, but their interest continues conditional, and the condemnation only ascertains and determines the fact, on which the right is consummated, should no remission take place. Such a remission, in an action against a marshal for failure to levy a venditioni exponas, was said to operate as a supersedeas to the execution, and the marshal was held not liable. United States v. Morris,* 10 Wheat., 246.

§ 354. Judicial functions. The act of congress of 2d March, 1867, supplementary to the several former acts abolishing imprisonment for debt, in its concluding words provides, "but all such proceedings shall be had before some one of the commissioners appointed by the United States circuit court to take bail and affidavits." The objection that these words confer an independent judicial function, and that congress cannot constitutionally make such a function exercisable by any officer who is not appointed by the president with the consent of the senate, cannot prevail. In re Russell v. Thomas,* 10 N. B. R., 14; 10 Phila., 239.

§ 355. The action of two out of three commissioners, to all of whom was confided a power to be exercised, cannot be upheld when the third took no part in the transaction, and was ignorant of what was done, gave no implied assent, and was neither consulted by them, nor had any opportunity to exert his legitimate influence in the determination of the course to be pursued. Peay v. Schenck, 1 Woolw., 175.

§ 356. Where the law required a board of three commissioners, and the third commissioner, although nominated and confirmed, did not qualify or enter upon the duties of his office, there was no board of commissioners in existence. Ibid.

§ 357. Under the organic law of the territory of Utah the territorial attorney-general and not the district attorney of the United States is the proper person to prosecute offenses against the laws of the territory. Snow v. United States,* 18 Wall., 317.

$358. The territorial marshal of Utah is not a federal officer, and his bailiwick being coextensive with the territory, he is not therefore a township, district or county officer. He is included amongst "all officers not herein otherwise provided for," and must be nominated, and, by and with the advice and consent of the legislative council, appointed by the governor. (Organic Act, sec. 7.) The Utah statute providing for the election of a marshal by vote of both houses of the legislative assembly, so far as it conflicts with the organic act, is null and void. One commissioned as marshal by the governor, therefore, will be recognized as de facto territorial marshal, rather than one elected by the legislative assembly. Duncan v. McAllister,* 1 Utah T'y, 81.

§ 359. A collector of internal revenue cannot revise nor refuse to enforce an assessment regularly made by the assessor in the exercise of the latter's jurisdiction. The duties of the collector in the enforcement of the tax assessed are purely ministerial. Erskine v. Hohnbach, 14 Wall., 613.

§ 360. Special treasury agents charged with the duty of collecting “abandoned or captured property" were required to pay into the treasury of the United States the proceeds of property sold by them as abandoned or captured, and they transcended their powers when they assumed to surrender such property which came into their hands, or to distribute its proceeds after sale to those claiming them. But where these duties were disregarded, and the proceeds paid to persons falsely pretending to be the owners of the property, the real owner has no right of action against the government on account of such wrongful act of said agents. Spencer v. United States,* 8 Ct. Cl., 285.

$361. A receiver of public money is individually responsible for all money received in his public capacity. And when the action against him is for money had and received, and the account charges money and stock, it is held that stock is receivable as money at par, and that where the balance claimed is reduced by the verdict of the jury, which is for money only, below the amount of cash claimed, the just inference is that the stock balance has been extinguished by the vouchers produced on the trial in the court below. Walton v. United States,* 9 Wheat., 651.

§ 362. The officers of the quartermaster's department at Key West had no right during the war to hire for the United States premises, the title to which was invalid by circumstances known to the officers at the time the lease was made. And the United States did not become by such action of said officers parties to the lease nor liable thereupon. (PECK, J., dissented.) Filor v. United States,* 3 Ct. Cl., 25.

§363. An acting assistant quartermaster at Key West cannot bind the United States to a lease of premises for the use of the quartermaster's department, or any branch of it, without the approval of the quartermaster-general. Until such approval, his action fixes no liability on the government. It matters not that such lease was approved by the commanding officer at Key West. Nor can the unauthorized acts of such officers estop the government from insisting on their invalidity, however beneficial they may have proved. Filor v. United States, 9 Wall., 45.

$364. Pay and expenses. If the duties and services of an appointee by the secretary of the navy turn out to be more onerous, important and expensive than was contemplated when the contract between him and the secretary was made, they nevertheless cannot change that contract, but they afford a good reason for modifying it or making a new one, or for the exercise of the secretary's discretion in making allowances to meet these unexpected contingencies. United States v. McCall,* Gilp., 563.

§ 365. The items in an account of an agent suspended by one secretary of the navy may be allowed by a subsequent one, but once allowed, they cannot afterwards be brought into question by the United States. Ibid.

§ 366, A United States commissioner is a magistrate of the government, exercising functions of the highest importance to the administration of justice. He is an examining and committing magistrate, bound to hear complaints of the commission of offenses against the laws of the United States in his district, to cause the offender to be arrested, to examine into the matters charged, to summon witnesses for the government and for the accused, and to commit for trial or discharge from arrest according as the evidence tends or fails to support the accusation. United States v. Schumann, 2 Abb., 523; 7 Saw., 439.

§ 367. While a charge is under investigation before either the commissioner or the grand jury, the district attorney has no absolute power over the case. His duty requires him to attend the sessions of the grand jury, to advise that body upon points desired, to examine witnesses, and to draw indictments when directed. But he cannot control the action of that body. After indictment, and before trial, his authority may be said to be absolute. He can enter a nolle prosequi, even without the consent of the court. After trial has commenced, he can do so with the consent of the defendant. United States v. Schumann, 2 Abb., 523; 7 Saw., 439.

§ 368. United States commissioners are not conservators of the peace and have no control of police regulations in their districts except where express powers are conferred by a statute of the United States. Their powers and duties are confined in criminal matters to those necessarily exercised as examining and committing magistrates, and within this jurisdiction they must conform, as near as may be, to the forms and procedure required by law of justices of the peace. The powers and duties of a commissioner are co-extensive with the limits of the judicial district in which he is appointed, and he may commit a prisoner to the jailer of the county in which the United States court is held, but it is best to commit to the jailer of the county of residence, that the prisoner may have convenient opportunity of procuring bail. If the commitment be to the last-mentioned jail without any qualification, the commissioner has no further control over the prisoner except to admit him to bail. Under a statute of the state of North Carolina, justices of the peace have power to let to bail persons committed to prison charged with crime not capital, and the recognizance must be filed with the clerk of the court of trial. Commissioners have similar powers in United States cases. When a prisoner desires to give bail, the commissioner need not go to the jail, but may issue a warrant to the marshal or his deputy to bring the prisoner before him at some convenient place for the purpose of accepting bail. United States v. Harden, 10 Fed. R., 802; 4 Hughes, 455.

§ 369. A navy agent may at the time of being such be also an acting purser. There is no law which prohibits a person from holding two offices at the same time. United States v. White, Taney, 152.

§ 370. The office of navy agent had no existence prior to the passage of the act of March 3, 1809. Under the act of 1809, the phrase "permanent agents" signifies those appointed by the president with the advice and consent of the senate. And a navy agent appointed by the president with the advice and consent of the senate is such a permanent agent, whether he is a foreign or domestic agent, and his compensation is regulated by said act. Armstrong v. United States,* Gilp., 399.

§ 371. A superintendent of Indian affairs has a right, under section 3828 of the Revised Statutes, to advertise for proposals to furnish supplies, in newspapers in which he was authorized to publish such advertisements, by a general order made and issued by the secretary of the interior and signed by the commissioner of Indian affairs, and directed to the predecessor of such superintendent. And the expense of such advertisements must be allowed such superintendent in his accounts. United States v. Odeneal, 10 Fed. R., 616; 7 Saw., 451.

§ 372. An Indian agent cannot exceed the limit of an amount which he was authorized to expend in the erection of an agency house, and if he does so exceed his instructions the loss must fall on him, although his disbursements were made with economy. United States v. Duval,* Gilp., 356.

1

§ 373. An Indian agent cannot charge the United States for money expended on land reserved to the Indians, and upon their credit. Ibid.

§ 374. A sub-Indian agent cannot draw drafts so as to charge the United States. Jackson v. United States,* 1 Ct. Cl., 260; Fremont v. United States,* 2 Ct. Cl., 461.

§ 375. The statute of Nevada in regard to the duties of the attorney-general, defining them to be to appear and defend the interests of the state in those cases where the state may be rightfully sued, may make it desirable that he should appear and defend officers of the state or even others where the interests of the state may be affected; but it does not authorize parties to sue the state nor does his appearance confer jurisdiction to determine the rights of the