FLll:'I'CHER V. UNITED STATES.·
to be enjoyed jointly or severally. Copartners, upon a dissolution of
partnership, may stipulate that each of them may use the trade-marks of the firm, and there may be many other cases of joint and several ownership; but such co-owners will together be entitled to the exclusive use of the trade-mark, and perhaps· each of them will be entitled to such exclusive use as to all other persons except their associates in ownership. But this is very different from a claim by a resident of New York city, in common with all the other residents of that city, to the designation of an article as a New York article,-for example, New York soap, New York flannels, New York whisky, etc. Such a trade-mark cannot be maintained. A cigar manufacturer of Havana cannot maintain a claim of trade-mark in "Havana Cigars." If a dealer in New York sell cigars as Havanacigllrs which are not such, it may be fraud, but it is no viOO' Iation of a trade-mark which can be claimed by all the cigar-makers of Havana. It is open to all persons to go to Havana and manufacture cigars there; but It would be absurd to say that they would therebyac" quire a trade-mark in the name" Havana Cigars." So all cement manfacturers in Rosendale and its vicinity may rightly call their manufactured article "Rosendale .Cement," but any other. per50nmay go ·too Rosendale and manufacture cement there, and have the same right." There is no exclusive property in the name, even in those who now 1"6;Elide. there, or carryon the manufacture there. It is open to all the world. In our judgment there is not, there cannot be, any trade-mark' in the name of the place. .
FLETCHER fl. UNITED STATES.
(O#C1J,U Oourt, E. D. A.rkansas, W. D.lfebruary 2lI, 1891.)
UNITED STATE$ MARSHAL-FEllS-PURSUIT OJ' Fu&I'rIVES.
W here a marshal, according to the practice in .his district as allowed by the government, pursues into another distnct fugitives from justice, acts as witness in identifying the fugitives and making prima fdcie proof of their gUilt] and arrests them as Rpecial deputy of the marshal of the Qther district, who relInq,Uisbes all claim for fees for such arrest, suchmarsbal is entitled to compensation for his serv· ices in pursuing, arresting, and bringing back such· fugitives, even though the practice of the department in that respect has changed since the services were rendered. .
,Act COI/-gi Feb. 22 1875, (18 Bt.ll84,) which provides that no marshal shall be paid ; , for trav.el not. actu;Jly and performed, does not prevent a marshal from . recovermg mileage on each wnt served, even though· several writs are served on . different persons at the Same time and place. Following Ha1'71UYn V. U. S., 43 Fed. . Rep. 560. . . . The fact;tliat the 5th of·July.was generally celebrated as IndependenCe day,· the 4th falling on SundaY,does pot disentitle a marshal to his per diem fo/.' attendlDIt court on that day, where the record shows that the court was open and transacted business. .." .; ..
ISSUED BEJ'ORE MARSHAL .QUALIJ'IIft>. . .. ' . .;. ;
:11. SAME-PER DIIliM-LEGAL HOLIDAY.
. Where writs is'sued before. the marshal who served them qualified for we/.'8 . '" turned over to him b:¢ his· predecessor, under arrangemeut that he shoUld have the·
vol. 45. '
, fees therefor, and the writs are serV\ed by,himafter hO quali.fl.illl; he ill entitled to' , fees for such service. " " '
,: &HE-PER DIEM-Dot$r,E CHARGE. ,', ,
, Neither a marshal ,nor 'his deputy'is'entitled to a PI!T' diem for attendance before a oommissioner on days for which has received a per diem for attendance before the, court. "',' , '
United States. '
At Law. U. M. &- G. B. Rose and &- Ratcliff, for plaintIff. C. O. Waters, Di8t. Atty., and 8. R. Allen, Asst. Dist. Atty., for the
CALDWELL, J. This is a suit under the act of March 3, 1887, c. 359, (24 St. 505,) to recover $5,822.34, fees and disbursements alleged ' to, be' due the plaintiff as late marshal of this district, and which were either disallowed, or the allowance suspended, by the comptroller. The. items of the account are very numerous, but they may be classed undera few heads. 1. A principal item of the account is $1,400 for 280 per diems on the' Lord's day. The marshal resided at the place where the court was held. Upon an intimation from the court, in of the trial, that it w.as not inclined to regard the, claim with favor, the plaintiff dismissed his suit as to this item; and the court, therefore, expresses no opinion upon .the question, which it is said is. raised ina cause now pending in the supreme Q.ourt. .,. 2. The charge of $130.50 for expenses in to arrest does not exceed $2 per day, the sum allowed by law, (section 829, cl. 18, Rev. St.,) for each day of endeavor. "The proof shows that the services were performed, and that the expenses equaled the sum charged, and BOmetimes exceeded the $2 per day allowed by law. 3. Items for the, to 8141.89, were disallowed or suspended by toe 'comptroller on the ground that mileage the proof shows the route was not charged by the.spqrtest taken was the nearest route atthe time. 4. Charges for guard hire, amounting in the aggregate to 8142.40, the' Comptroller, on the ground that were uhnecessary. The proof shows that the guards were actually employed and paid, and that . , ' ., p. There are a, good charges in the account, amountiJ:lg in the aggregate to $1,804.78, which are for services rendered by the ll1arshal in pursuing fugitives from the justice of this district into other districts, and arrestingalld bringing ,them ,back to this district. These items disallowed by the i;)Ilthe ground that the marshal had no authority to arrest,a, any district but his own. Technically that is true, but that is not all there is in the case. When one district, and flees c()JJlmitsa,n offensa, against the United States in into another, he cannGt,'be broughtl;>ackto the districtin which he com· niilied the offense, for t'ria!, without an order of the judge of the district in which he be fourtd;';'Before this order Olln be procured it be made to there Are probable grounds to
215 believe the accused is guiJ!tyof.th'erOffimsecharged. It is true that if an indictment hasbeenfonnd, that is ae<:epted. as sufficient prima JacU evidence, butin that case it may be necessary ro ha\:e;a witness to identify the accused. It was,thetefore, the practice in this district for the marshal to deputize some one to go after the accused who could identify him. and. if need be, make the requisite prima fa.cie proof of his guilt. The depntyHnarshal acted in the double capacity of witness and marshal, and inthis way saved the government the e.xpenseof sending a witness. When the order of removal was made the marshal of that· district deputized the deputy-marshal from this district ro execute the warra.nt of removal, atJhe same time executing a writteAreliuquishment. exhibited to.thecQurt and attachedrothe accounts, ofa.Il claim against the arnment ·[01.' fees for that servioejn favor of the marshal of this distriot. Ifthe:marshal or the district w,here the otrender was found had any il);' terest in the fees, this relinquishment operated as an equitable assignmentof them ro the plaintiff. 'The marshal in this matter followed the practiee oehis predecesso-rsin' 'office, whose fees and charges for like and paid by the services and departnient. The practice of the department was changed p.fter the setvices'Sbed' :for were·, 'J.Iendered. The fees ,for these. services have.not beenpaid,to any' one,.and the marshals of the -districts in which the f.ugitives ,were arrest.edlllakeno claim to them;.r· On these facts the claim is justly due the plaintiff'. .' '. "6. N\1.merouscharges for,mileage,in serving'writs for the government, by the comp.amounting in the aggrcgate to $1,565.19, ;trl>Uer,iPll;the,.ground tbah'where, the,IDarshlll had two or, more writs for service on different persons at tbesame time and place, he. was. enThll di$trict attorney relies on,the titledtcun-ileage on one act 22, 1875, (1.8 St. 334,) which provides that no marshal "shall become entitled ro any allowance for mileage or travel nolactually. Blld· necessarily performed under provisions of, existing law;" and cites in support of his cont,ention Tur:ner v. U. S., 19 Ct. Cl. 629j 15 Op. 108. But a sounder view of the law is expressed in 16 Op. attye. Gen. 165; andin,Harmonv. U. S., 43 Fed. Rep. 560. 7. A charge of $23.34 for summoning jurors at one term, s.nd of $50 forsUiI1moning at another'term, are allowed. The statute allows the marshal for such service a sum not exceeding $5.0 for each term. The service was performed, and the fees equal the charge made. a per 1886) is disallowed by thecompAll over the Qountry this day was eeletroller for the following. brateq as lndepeRq,ence' day, the fourth occurring on Sunday, and' it would seem, that the court might have a.djournedover that day." The patriotism :the 'comptroller is commendable, and his rhetoric good, 'bui'hiltlaw ravery bad. The 5th day of July, when it falls on Monday, isnordws non juridicus. The record shows the court WIlS open and trans'acted' brisiness on that and that the marshal was' in attendanCe, as was his duty to be by law. .:.
9. Items aggregating in amount $16 were disallowed because the service was supposed to have been performed before the plaintiff took the oath of office. The writs were issued before the plaintiff qualified as marshal, but they were not returned until after he had qualified. By a.n arrangement between the outgoing and incoming marshal, the incoming marshal was to have the fees earned on all the writs in the hands of the deputies at the date the office changed hands. Under this arrangement the plaintiff became entitled to these fees. The outgoing marshal makes no claim to them. 10. Numerous small items,a.ggregating $262.69, were disallowed or suspended by the comptroller for· various reasons. The proofs show that -the services were performed, that they were necessary, and that they were services for which the law allows the marshal the fees he has charged. These facts are conceded, and a more particular notice of the items is therefore unnecessary. 11. The marshal charges 8102 for 51 per diems' attendance before a commissioner of the circuit court on days for which he charged and was paid for per diem attendance on the court. He cannot earn two per diems on the same day. 12.';A charge of $36 is made for per diem of deputies attending before a commissioner of the circuit court all days when they attended and werepaid.as bailiffs to the court. They are not entitled to duplicate per diems. 13. There are a number of small items, aggregating 886.29. The services charged for, which go to make up these items, were not authorized by law. The plaintiff now admits this, which renders a particular statement of the items unnecessary. 14. Charges amounting to $11.50 for serving temporary warrants of commitment are disallowed. Section 1030, Rev. St. U. S. ; G1Jhert v. U. S., 23 Ct. C1. 218. 15. Clerical errors and duplications of account against thegovemment, amounting to $19.63, are, of course, disallowed. 16. The law allows the marshal not exceedi,ng $50 for serving venirest at anyone term. For the April term, 1886, he charged $25.18 in excess of this sum, which is disallowed. The government has filed a set-off amounting to $1,072.58, which the plaintiff admits is just; The following isa statement of the account as found by the court:
Total amc\l;nt claimed, · $5,822:34 By dismissal of claiM' for 280 Lord's day per $1,400 00 diems, ' By,amounts disallowed as st.ated above, 280 60 ;By amount, of set-off, 1,072 58 2,753 18 :Balance due plaintiif,
-For which let judgment be entered.
PACIFIC BRIDGE CO. 'D. CLACKAMAS COUNTY.
(Cirouit Court, D. Oregon. February 16, 1891.)
CONTRACT WITH A COUNTY.
A county can only contract with or by the authority of its court, and the same caD. only be shown or proved by an entry in the record of county business; but where a county court agreed with a contractor for certain modifications in the plan of a bridge then in course of construction, and that the latter should be compensated therefor, and the provision concerning such compensation was omitted from the entry in the record, the extra work and material involved in the modification being done and furnished by the contractor and accepted by the county, the latter isliable to the former for the reasonable value thereof, the same as a natural person. .
BUILDING COUNTY BRIDGES.
Section4140 of the Compilation of 1887 authorizes the county court. in its discretion, to construct and repair bridges within the county; and the only restraint on the exercise of this authority or discretion is found in section 4141 of said Compilation, which provides that a contract to construct a bridge must be let to the lowest bidder. Contracts for repairs of county bridgeR, when such repairs do not amount to a substantial reconstruction of the bridge, may be let by the county court privately; and modifications in the plan of a bridge, in the course of construction, involving labor and material in exces's of that provided for in the original contract, may be let in like manner, so long as the same is done in good faith, and not with the intention to supersede the original contract to construct the bridge, with another one, not pUblicly let, or one that shall have that effect. . '
S.REPAIRS AND ALTERATIONS Oll' COUNTY BRIDGES.
Mr. Rufus MaUory, for plaintiff. Mr. Julius Moreland, for defendant.
DEADY, J.. This action is brought by the Pacific Bridge Company, a the county of corporation formed under the laws of California, Clackamas, a municipal corporation of the state of Oregon. The complaint contains two causes of action. In the statement of the first cause of action it is substantially alleged that on April 14, 1888, the plaintiff contracted with the defendant to build'a suspension bridge across the Wallamet river, at Oregon City, in said county, in accordance with the specifications annexed to the contract. That after said contract was made, but before the piers of the bridge were constructed, the defendant applied to have a change made in the piers under the tower of the west end of the bridge, to which the plaintiff consented, inconsideration that the defendant would pay the additional expense incurred thereby, to which the latter agreed; and thereupon the county court of said county directed an order to be entered in its records to the effect that said change be made at the expense of the defendant. That on July 2,1888, in pursuance of this direction, an order was entered as follows: "Piers under corners of towers on east .side to be three feet square on top, as shown in the working plan exhibited by contractor, and to have a batter of one in 12 on outside, as therein shown, but of one in three on the inside, making the bases about seven feet square; connecting walls to be two feet thick all around,"but that part of the· order providing for the payment of the plaintiff for the extra work and materials required to effect such change wasnot en-