FARMERS' LOAN & TRUST CO. et al. v. DART, 91 F. 451

PARLANGE, District Judge (after stating the facts as above). A bill having been filed to foreclose a mortgage on the Waco & Northwestern Division of the Houston & Texas Central Railway Company, a receiver was appointed, who continued the operation of the road. While the road was thus being operated by the receiver, surplus revenues from the earnings of the road; and rentals and pro-' ceeds of the sale of land covered by the mortgage, accrued, and the aggregate of those moneys involved in this cause is $650,212.16, upon which the clerk has taxed to himself, and claims, under

section 828, Rev. St. U. S., a commission of 1 per cent. The first item of this aggregate is one for $100,000 deposited on December 14, 1892, by Alfred Abeel, receiver, in accordance with an order of court dated December 6, 1892. This seems to be for moneys which, when a change of receiver took place, were transferred, by an order of court, from one receiver to the other. These moneys, after being ' received by the second receiver, 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 capacity. The assignment of errors and the briefs of appellants do not seem to be aimed so directly at this item of $100,000 as'to the other moneys involved. The commission provided by seotion 828, Rev. St. U. S., is to compensate the clerk for his services, trouble, and responsibility in “receiving, keeping and paying out money, in pursuance of any statute or order of court.” Judge Pardee, in the case of Easton v.

Railway Co., 44 Fed. 718, called attention to the fact that there has been a material change in the fee bill on the point herein involved. Formerly the commission was allowed upon moneys deposited in court, while at present the commission is for the services and liability of the clerk in taking possession cf. preserving, and turning over the funds. As to the item of $100,000 above mentioned, the clerk’s claim is valid, but his contention as to the other moneys cannot be sustained.

Appellee’s brief states and admits that all the moneys, except the item of $100,000, were deposited by the receiver directly with the assistant treasurer. They were, or are to be, paid out by the receiver, under orders of court directing him so to do. They never came into the possession of the clerk. Even if they were or are in the registry of the court, we have shown that the present 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, and, under the circumstances, could not have, paid them out. The only authority cited on appellee’s brief in support of his 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 decree 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] had 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 clerk’s 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 said 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 services, 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.