740
REPORTER.
appliances to facilitate the escape of gas while steaming my wells; and do not think it necessary to provide any means of escape for t.he gas in wells that would be benefited by steaming." Mr. Chandler testifies·: "I never knew ofa well where it was necessa,ry, and cannot comeive of a well existing in which is necessary, to have an exit for the gas when being $teamed." These witnesses. are experienced oil operators. I am well satisfied from the evidence of the entire truth of the aIlegation made by the defendant in' his answer, "that in steaming his wells he makes no use of the stpp-cock on the gas.-escape pipe, as he can 'properly steam his wells whether such stop-cock is opened or closed." Let a decree be drawn dismissing the plaintiff's bill, with
THE
CLINTONU.·
(District Cr;urt,.lJJ. D. Louisiana. April, 1882.) .\'DlIIIRALTy-MARSHAL'S COSTS.
Under section 829 of the Statutes the marshal is entitled to his commissions, when,after a seizure' In admiralty, the suit is settled, though wiihOut an order of sale. The commissions "ill be computed upon the amount paid in settlement. The Norma, Newt. 533, denied.' , , The RU88ia, 5 Ben. 84, and Tke Oity of Wa8hington,13 BIatchf, 410, follow?d.
J. Ward.Gurlcy, Jr., fOr thElmarshal. M. M. Cohen, for libellants. BILLINGS, D. J. The here presented is onanappeaUrom ·,the taxation Qf cOllts fOr the marshal by the clerk Under..that subdivision of section 829 of the Revised Sta,tutes which provides: "When· the debt or claim in admiralty is settled by the parties without a sale of the property, the marshal shall be .entitled W a commission of 1 per centum on the first $500 of the claim 91' decree, and one-half of. 1 per centum on the excess of any sum thel'eo{over S500: provided, that whenthe value of the property is less than the claim, such commission shall be allowed only on the appraised value thereof."
In this case, libel was filed to recover for salvage service. There was a seizure by the marsh,alunder admiralty process, and the property was released. on ,stipulation, when the claim was compromised, «<Reported by Joseph P. Hornor, Esq., of the New Orleans bar.
a
TIrE CLINTONIA.
741
and the suit withdrawn previous to any decree, and it is admitte, that the libellants received by way of such compromise the sum of $25,000. Upon,this sum the marshal claimed commissions, the clerk rejected the claim, and the marshal has appealed. The preceding subdivision establishes a fee not to exceed $2.50 per diem for the necessary expenses of keeping boats, etc., attached or ,libelled in admiralty, and the following subdivision fixes the commissionlJof the marshal for sale of vessels and other property under admiralty process, or under the order of a court of admiralty. It will be se(ln, therefore, that the expenses for keeping property libelled, and the fee for the sale of libelled property, are provided for by these two juxta-placed subdivisions, and that congress intended to provide a third compensation, 'namely; a commission in case of settlement without a sale. In the case of Steamer Norma, Newb. 533, my predecessor refused to tax this commission for the marshal on the ground that there had been no substantial service, and therefore it would have been a mere gl'atuity. In my opinion courts must not attempt to assess the compensation of officers under the fee bill by a determination of what had been earned in that particular case. Necessarily the fees can be established only by classifying the various services of the officers,'and fixing the fees for the services as thus classified; the' classification heing arrived at so as, in the opinion of congress, to provide whole adequate and proper compensation. Undoubtedly such a systemized regulation of fees will give more fees in some casestpltn will have been earned; but, on the other hand, in the same :case often lpuch service is dem!tnded and littlecompel1sation allowed._ It is the duty of the courts simply to see iI!-tq what the- serTice in question falls, and, then to award the fee -orcolpmission which acts of that class are entitled to. For the service and responsibility of the marshal in case a seizure and settlement of the claim, congress has said there shall be this commission. Here is a class established. The case here presented falls within that class, and the officer must receive the corresponding fee. This is the view of Judge Blatchford in The Russia, 5 Ben. 84, and of Judge Benedict in the City of Washington, 13 Blatchf. 410, and they are well-supported But it is urged for the libellants in this case that there had been no decree, and therefore there could be no assessment of commission. The answer to that argument is that the statute says the commission shall be allowed upon the "claim or
of
''142
FEDBRAL REPORTER.
and ahaU.be,at such a per centum "of the claim or decree."' The meaning clearly is that the decree shall determine. the amount, if there has been a decree arrived at and it does not exceed the value of the property; but if the settlement has been effected before the cause had ripened to a decree, then the sum realized or paid is the basis of the commissions. The adjudications with reference to the fees of sheriffs and marshals, in cases of levies under executions and settlements by payment to plaintiffs, are in point. In Swann v. Ringgold, 4 Cranch, C. C. 246, the language of the statute being "the sheriff or marshal spould have. a commission if the propert.Y peactually sold or the debt paid," the"court says: "If the act gives the whole commission when the whole debt is. paid, the equity of the act would: give part of the commission when part of the debt is paid; that is, pro rata." In Hildreth v. Ellise, Caines, 194, where the law regulating sheriffs' fees gave, "for securing an execution for $250, two cents and four mills per dollar, and for each dollar more one cent and two mills, with a limitation that 'poundage' should be taken only for the sum levied," the court said: ., Whenever the plaintiff interposes and a compromise takes place, he [the sheriffJ is entitled to poundage on the sum realized by the plaintiff, or that might have been collected on the. property levied on. '" '" '" Cases no doubt may be supposed where the sheriff will receive more than a valuable consideration for his services; but we think much less injustice will be done by adopting the rule we have laid down, than to say the sheriff shall be depriVed of all his poundage whenever a compromise takes place." See, also, Alckin v. Wells, 5 Durn. & East, 470.
Applying the statute to this case, the claim is the amount received by the libellant in settlement or compromise .of the same. That amount being $25,000, the marshal is entitled to a commission of $127.50, which amount the clerk is directed to tax.
'THE FIFE"HIRE.
743
THE FIFEBHIRE.-
(District Oourt, E. D. Louiszana. Janualj";,1B82.) L ADMIRALTY PRACTICE.
After joining issue upon a libel in admiralty in rem, and filing 8 cross·bill for affirmative relief against the libellants in pe1'80llam, an exception or plea of the want of an admiralty lien cOpies. too, late. 2. ADMIRALTY JURJ8DJCTIO:N"-(''HARTER.PARTY.
A charter,party dsa maritime contract, and, /lsb.etweentb1l parties to it in a personal action, a court of admiralty has jurisdiction to determine the obli- . gations arising therefrom, and whether they have 'been violated.
In Admiralty.' H. Fl. Bryan, for libellant. E. W. Huntington and Horace L. Dufour,' for! defendant. BILLINGS, D. J. The libel avers the execution Of a charter-party by libellant and owners of the Fifeshire, .a refusal to comply, and prayss seizure and damages. There has been a seizure, an answer, and s cross-libel, wherein thEfmsster, on behalf of the owners, prays damages for a 'violation of other stipulations of the chaJiter-party. Subsequently the respondents filed the following exception: "Now into, eo,nrt come respondents herein, who except to the jurisdiction of this court ratione materia, and ask that the libel be dismissed, with costs. " . If, without any joining in this suit by the presentation of a cross-. claim for affirmative relief, the respondents had presented the ques" tion as to whether this charter-party created a ,lien upon the vessel. chartered, the matter presented would have been a proper subject to have been passed upon by an exception or a plea to the jurisdiction; for, in that case, there would have been no defendant except the res,) and whether the court had jurisdiction would have been dependent entirely upon whether the charter-party gave rise to a lien, i. e., whether a suit in rem could have been maintained. But now that the owners have appeared in the cause personally,. and as individuals have asked for affirmative relief, the controversy must go On to a determination. For there can be no doubt but that, the charter-party is a maritime contract, and that, as between the to parties to it, this court, as a court of admiralty, has determine the obligations arising therefrom, whether they have been violated, as to any damages suffered, by either party or both pa,rties, therefor.. As to whether the judgment and to pronounce -Reported by Joseph P. Hornor, Esq., of the New Orleans bar.