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custody the original complaints, examinations, and records. The statute of New York referred to is as follows:
“Whenever any magistrate having criminal jurisdiction shall take any deposition, affidavit, or complaint in writing, upon which he shall issue any criminal warrant, search warrant, or other criminal process, he shall file and preserve the same, and on the demand of any person affected by the said warrant, search warrant, or other process, he shall exhibit the said deposition, affidavit, or complaint to such person for his perusal, and such person, by himself or by another, may take a copy thereof."
DECISION BY WILLIAM LAWRENCE, First Comptroller:
The Revised Statutes of the United States provide:
“SEC. 1014. For any crime or offense against the United States, the offender may,
by any commissioner of a circuit court to take bail, or by any
magistrate, of any State where he may be found, and agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. Copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appearance to testify in the case." (U. S. vs. Rundlett, 2 Curt., C. C., 45; U. S. vs. Horton, 1 Green, Crim. Rep., 431; S. C., 2 Dillon, C. C., 94.)
Section 2027 provides that,
“All United States marshals and commissioners who in any judicial district perform any duties under the preceding provisions relating to, concerning, or affecting the election of Representatives or Delegates in the Congress of the United States, from time to time, and, with all due diligence, shall forward to the chief supervisor in and for their judicial district, all complaints, examinations, and records pertaining thereto, and all oaths of office by them administered to any supervisor of election or special deputy marshal, in order that the same may be properly preserved and filed."
The fees of the commissioner are regulated by section 847, as follows: “For administering an oath, ten cents.
“For hearing and deciding on criminal charges, five dollars a day for the time necessarily employed.
- For attending to a reference in a litigated matter, in a civil cause at law, in equity, or in admiralty, in pursuance of an order of the court, three dollars a day.
“For taking and certifying depositions to file, twenty cents for each folio.
“For each copy of the same furnished to a party on request, ten cents for each folio.
“For issuing any warrant or writ, and for any other service, the same compensation as is allowed to clerks for like services.
Section 828, regulating clerks' fees, allows
“For a copy of any entry or record or of any paper on file, for each folio, ten cents."
Section 1778 authorizes the commissioner to use a seal of office for the purposes therein prescribed.
The statute of New York, cited in argument, requires committing magistrates in criminal cases to "file and preserve” all “depositions, affidavits, or complaints.” It seems to be supposed that section 1014 of the Revised Statutes of the United States so far adopts the State statute as to require a commissioner, under the election statutes, also to file and preserve similar papers in his own custody. This is a mistake. The State statute is only adopted in respect to "the usual mode of process. This includes something more than what is technically "process;” it includes forms and practice so far as applicable and not otherwise provided for by the statute or common-law usages under the authority of the United States.
The commissioner is not required, or even permitted, to retain complaints, examinations, records, or oaths of office; but is required by section 2027 of the Revised Statutes to forward them to the chief supervisor, "in order that the same may be properly preserved and filed” by him in his office; and this section cannot be controlled by the statute of New York. The commissioner in this case is also the chief supervisor; but he is in each position or capacity to be considered as a separate, distinct officer, and is, as commissioner, to "forward” to himself, as chief supervisor, the original “complaints, examinations, records,
and all oaths of office. The commissioner is not authorized to make records or copies of any of these; nor is it necessary for the purpose stated; and, hence, he cannot be allowed fees for making the same. He is not, as commissioner, required to "file" any of these papers, and cannot be allowed fees for doing so.
The originals are to “be properly preserved and filed” by the chief supervisor to whom they are 6 forwarded.” The commissioner is not entitled to fees for affixing a seal to oaths of office. Section 1778 of the Revised Statutes does not authorize the commissioner to use a seal as to the matters now under consideration. (Muirhead vs. U. S., 13 Ct. Cls., 256.)
The account of Mr. Allen for the services enumerated is disallowed. TREASURY DEPARTMENT,
First Comptroller's Office, April 23, 1881.
IN THE MATTER OF REMAINING EXECUTOR'S AUTHORITY TO CONTRACT FOR CONTINUANCE OF CALLED BONDS.BOND-CONTINUANCE CASE.
1. An executor has no authority by virtue of his office, and in the absence of specific
directions in the will under which he acts, to agree with the United States to extend the time for paying Government bonds which have been called in for
redemption. 2. A will may vest in the persons who are executors under it duties as trustees
which are distinct from those incumbent on them in their character as executors. 3. The acts of one of two executors, not dissented from by the other, in respect of
the administration of the effects, as distinct from the making of general contracts,
will, at common law, ordinarily bind both. 4. A naked power, given to two or more trustees in ordinary trusts, must generally
be executed by all of the trustees. 5. If one of several co-trustees become insane, his place must be supplied by the
proper court, or in some other authorized manner, in order to the execution of
the trust. 6. If a co-executor become non compos, the proper court may, on account of the dis
ability, remove him from office, and either confer the executorial power upon the competent executors or testamentary trustees, or else appoint another in
his stead. 7. If a naked power be given to “trustees,” even nominatim, yet in their official
character as " the trustees," the survivors or survivor of them may execute it,
because it is annexed to the office, or to the trustees ratione officii. 8. Where, however, a mere discretionary power, or one simply collateral, has been
given to several persons expressly by name, and to them only, all the individuals named must join in exercising it; and if one or more of such persons disclaim, the power cannot be validly executed by those only who have accepted the
trust. 9. A trustee who has once acted in or accepted the trust, and has not been properly
discharged from it, must, in the execution of the trust, join the other trustees,
and it is immaterial that he has parted with the possession of the legal estate. 10. If a power be coupled with an interest, the authority to execute it is generally
held to survive; nor will the power of an executor be determined by the death of his co-executors, but will survive to him; and where the power to executors to sell arises by implication, the power to the survivor to sell will arise in the
same way. 11. Where trustees have the legal title to trust property, and so an authority
coupled with an interest, the office of trustee is “impressed with the quality of survivorship.”
The assistant treasurer of the United States at Philadelphia, under date of April 18, 1881, states, on behalf of the executor of the last will and testament of a deceased party, that one of two executors has become
insane, and the remaining executor desires to continue on interest at three and one-half per centum per annum, under Treasury Department circular No. 42,* a registered bond, formerly held by the testator,
* The circular is as follows:
Circular.-One Hundred and Second Call, with Provision for Continuance of the Bonds.
1881. DEPARTMENT NO. 42.
TREASURY DEPARTMENT, Secretary's Office.
Washington, D. C., April 11, 1881. By virtue of the authority conferred by law upon the Secretary of the Treasury, notice is hereby given that the principal and accrued interest of the bonds herein-below designated will be paid at the Treasury of the United States, in the city of Washingtou, D. C., on the first day of July, 1881, and that the interest on said bonds will cease on that day: provided, however, that in case any of the holders of the said bonds shall request to have their bonds continued during the pleasure of the Government, with interest at the rate of three and one-half per centum per annum, in lieu of their payment at the date above specified, such request will be granted if the bonds are received by the Secretary of the Treasury for that purpose on or before the tenth day of May, 1881, viz:
SIX PER CENT. BONDS, ACTS OF JULY 17 AND AUGUST 5, 1861.
$30, 706, 050 109,833, 600
SIX PER CENT. BONDS OF THE ACT OF MARCH 3, 1863.'
$9, 545, 500 45, 600, 230
55, 145, 750
aggregating $195, 690, 400, and being the entire amount issued under the abovementioned acts which remains outstauding.
The request above mentioned should be in form substantially as here with prescribed; and upon the surrender of the bonds, with such request, the Secretary of Treasury will return to the owners registered bonds of the same loan, with the fact that such bonds are continued during the pleasure of the Government, with interest at the rate of 34 per cent. per annum, stamped upon them in accordance with this notice.
Upon the receipt of bonds to be continued as above provided, the interest thereon to July 1, 1881, will be prepaid at the rate the bonds now bear, and after that date the semi-annual payments of interest on the continued bonds will be made by checks from the Department, as in the case of other registered loans.
All bonds, whether intended for payment or to be continued, should be forwarded to the "Secretary of the Treasury, Loan Division,” with a letter of transmission, setting forth the purpose for which they are transmitted, and, if to be continued, they must also be accompanied by the request above referred to.
Registered bonds for redemption or to be continued should be assigned to the Secretary of the Treasury for redemption or continuance, as the case may be, and when parties desire checks in payment of registered bonds to be drawn to the order of any one but the payee, they should assign them to the “Secretary of the Treasury for redemption on account of” [here insert name or names of persons to whose order the check is to be made payable.]
The Department will pay no expense of transportation on bonds received under the provisions of this circular, but the bonds returned will be sent by prepaid registered mail unless the owners otherwise direct.
of one of the classes described in the circular; and the assistant treasurer inquires whether this can be done on the application of the one sane executor.
The terms of the will are not stated.
OPINION BY WILLIAM LAWRENCE, First Comptroller :
It is the duty of an executor to make such disposition of the personal estate of the testator as the will under which he acts may direct; subject, however, to the rights of creditors of the estate, as fixed by law. If no direction be given in the will, it is the duty of the executor to collect and receive payment of, e.g., a government bond, as in this case, which has been called in for redemption, and to apply the proceeds as the law may require. (1 Wms., Ex’rs, 6th Am. ed.,  note p; (630, ] note e; 2 Id., 1986;] Echels rs. Barrett, 6 Ga., 443; Helme vs. Sanders, 3 Hawks, 566; Hagthorp vs. Hook, 1 Gill & J., 270.)
Unless authority be given in the will, or by direction of a competent court of equity or probate, the executor has no authority to continue the bond under the Treasury circular. (1 Wms. Ex’rs, (361,] (630;] 2 Ia., [986;] Atty.Gen’l vs. Brickdale, 8 Beav., 223; Ex parte Smith, 1 Dea., 385; M. & A., 506; Ex parte Phillips, 2 Dea., 334.) A will may vest in the persons who are executors under it duties as trustees which are distinct from those incumbent on them in their character as executors. (Gaudolfo vs. Walker, 15 Ohio St. R., 273.) If the executors are (1) as such, by the terms of the will, or (2) by the decree of a court, or (3) as trustees, independently of their character as executors, given such power as would authorize them to enter into a contract for the contin
Form of Request for Continuance of Bonds.
[DATE.] — To the SECRETARY OF THE TREASURY:
Under the terms of the circular No. 42, issued by the Secretary of the Treasury, April 11, 1881, -, the undersigned, owner- of the below-described United States sixper-centum bond-, hereby request, that payment be deferred, and that - be continued during the pleasure of the Government, to bear interest at the rate of three and one-half per centum per annum from July 1, 1881, as provided in said circnlar; and, in consideration of the premises, — hereby waive, and release, all right to, or claim for, any interest on said bond-in excess of three and one-half per centum per amuun on and after said date of July 1, 1881; and in witness thereof - have hereunto set · hand- and seal- this day.
(Here describe the bonds, stating whether registered or coupon, giving date of authorizing act, denomination, serial numbers, and amounts.) [Signature and P. O. address. ]
NOTE.--The seal should be of wafer or wax, if not executed by a corporation. In case the above request is signed by an officer of a bank or other corporation, it should be accompanied by the usual resolution authorizing such officer to act for the institution. The form of request, prepared in blank for use, will be furnished upon application to the Secretary of the Treasury.