The Merrimac. proved to have attended the performance of their duties by the prize commissioners, can authorize the court to enlarge their yearly emoluments above $3,000. The court is clothed with no power, by either act, to adjust that salary or maximum allowance, pro rata, upon prizes placed in the keeping of the commissioners during any other period than the particular year in which the services charged for were performed; and that, frequently, cannot be practically fulfilled by the court. Instances now exist in which cases of the condemnation of prizes in this court in the early stages of the war stand at this time undecided by the courts of appeal, and no execution can go from this court to make out of other prizes the sums adjudged to the commissioners for their services in those cases. Nor, however ample to that end the proceeds of prize property captured and condemned within a year may be, in their general amount, can execution out of this court touch any portion of the fund, except that made out of the individual vessel in respect to which the services represented by the execution were rendered. So long as the captured prize proceeds exist, they must be made to contribute their proportion to this salary lien; and the demand cannot be lawfully attached to other prize proceeds held by the court. This state of facts leaves the court no means of fulfilling the direction of the two acts of March and July, 1862, but by an effort to compute conjecturally whether the current services of a commissioner, rated according to the tariff first adopted by the court, will amount to the sum of $3,000 for a particular year, which can alone be paid to him for his services during that year. The court has not officially before it a return, in numbers, of the prizes seized and prosecuted to conviction, from July 17, 1862, to the close of the year directly succeeding, but a note taken from entries in one of the offices of the court shows that eighty-four arrests and condemnations were prosecuted during that period in this court. Evidence can be easily furnished from the papers in the respective causes, showing the exact amount of costs estimated in those suits; but it is assumed that the sum taxable against these eighty-four cases will average all of $100 in each case for the services of the prize commissioners, deeming both commissioners to be actually engaged in performing their duties. That will give $8,400 per year, which will be an excess of $2,400 above the legal compensation payable to the two, subject, of course, as is specified in the taxation, to the limitations prescribed by statute in the payment thereof. In the present case, however, it is to be observed, that only one of the The Merrimac. commissioners presents, as claimant, a bill of services to be taxed. He cannot ask to have adjudged to him over $3,000 for a year. That is to be provided for out of pro rata assessments upon each of the 84 cases; and, in strictness, if the court could have made known to it the services performed in all of those suits, each case would be assessed, upon like items, exactly the same charges, up to a complement, from the whole, to the amount of $3,000, and nothing over that sum. Then, in this case of the Merrimac, the entire taxation to be levied for this bill would not, in all reasonable probability, surpass fifty or one hundred dollars. The terms of the two acts of March and July, 1862, do not supply the court the means to effectuate that intent of the law, by bringing together the proceeds of captures for any particular year allotting them to discharge the assessment. That can be done only by the Navy Department. But, by the statute, each vessel is exempt from liability for this class of services, except for the year in which the services were actually performed in relation to her. It is to be further noted that the prize commissioners are not created accounting officers to the treasury for surpluses of moneys paid over to them under orders of the court; and that the government possesses no remedy against them for excesses paid to them, if such exist, other than through personal actions therefor, as multifarious as the prizes from which the surplus payments are derived. and The court, in administering these complex enactments, in the spirit of justness and equity, will, accordingly, be actuated by two prominent considerations: First, to so adjust the assessment imposed upon the prizes for the payment of the prize commissioners, as to fairly cover the salaries of the persons performing the duties of those offices whenever the amount subject to taxation is reasonably sufficient to that end; and, second, to avoid, with equal care, withdrawing from the beneficiaries to whom prize proceeds are devoted by law, after payment of the legal costs, moneys not lawfully payable to any officers of court. The court cannot, in principle, regard the government as any more empowered to divert such surpluses from their lawful destination to other uses, than the court or its officers are to misappropriate the moneys under their special charge. In review of all the legal and equitable considerations applicable to the particular item of taxation in question-the charge of one per cent. commission on $202,741 16, the aggregate amount of the proceeds of the prize vessel and cargo in this suit, resulting in a charge of fees or compensation, as above stated, of $2,027 41-I observe, 1. The value The Merrimac. of the steamer, $65,000, does not fall within the contemplation of the admiralty rule respecting "custody fees." That rule relates to goods or personal effects solely; and the value of the ship must necessarily be excluded from the charge. With regard to the cargo, it is not proved that extra labor or expense was imposed upon the officer by its custody, as it was all retained on board the vessel. 2. Custody fees on the cargo, ($137,741 16,) are, in their nature, a personal allowance to the bailee, for an individual trust executed by him. The reading of the rule denotes that it contemplates the fulfilment of a special confidence imposed by the court upon an official person, intermediate the interposition of another official, the marshal, by a superseding authority. No third person is authorized to assume such custody. He must be the official, individually. The judge of the district receives the prize from the captors, under the directions of the prize law, and he only can designate the person who is to take it into manual possession prior to its seizure by due process of law. The prize-master has no authority to put the prize into the custody of a servant of a commissioner. His delivery must be an actual one to the lawful substitute of the judge. The custody of the goods or cargo must pass in reality from the prizemaster to the commissioner, to constitute a legal delivery to the latter, and must be receipted for by him. The rule gives no compensation to the commissioner for the acts and doings of his servants or employés, independent of his special directions and supervision, so as to constitute the act personal by the officer. It is obvious that the rule contemplates a possession of the seized property purely official, and of the shortest duration practicable, until it is put under the guardianship of legal process. The allowances named are subject to variation, for cause adjudged by the court, in order to keep the compensation in reasonable correspondence with the labor and responsibility incurred. The proofs in this case show that the commissioner had a mere constructive possession of the cargo, no further, and for no other purpose, than that which is provided for under the standing charge allowed for "taking possession of it, with the papers, and placing his seal upon the hatches," &c. The affidavit given by Perry, the employé of the commissioner, in the first instance, proved no personal services performed by the commissioner in respect to the custody of the cargo. A supplementary deposition made by him on the 7th of January, 1864, and a deposition made by Prize Commissioner Eagle, on the 8th of January, evidently under a misapprehension of dates, states that the commission The Merrimac. ers had possession of this cargo, and performed acts for its safe-keeping, previous to its being arrested by the marshal. This statement, however, if accepted as further proof, does not show that this was extra duty, entitled to a special compensation, under the principles adopted by the court in the above decisions. But Commissioner Eagle and Mr. Perry are, both of them, in error in supposing that they were in possession of the prize on the 1st of July. It appears, upon the record and proofs in the cause, that the vessel was captured off Wilmington, North Carolina, July 24, and was brought into this port July 28, and was arrested and taken into actual custody, upon the process of attachment, on the same day, by the marshal. I cannot, upon the evidence before me, regard the commissioner as entitled to have taxed any part of the item charged for "custody fees," amounting to $2,027 41. If application is made to permit further proofs to be given formally by the commissioner in support of that item, such privilege will be allowed, under a like power to any other party interested in the funds, to offer counteracting proofs; and evidence will also be allowed to be given by any party in interest, tending to determine whether it be necessary and lawful, for the satisfaction of salary due the commissioner, for the year following the custody of this prize, that any portion of the item in question, or of other surplus commissions remaining in court, be appropriated to satisfy such arrearage. In case such power and necessity exist, it, doubtless, is within the competency of the court to rate such a proportionate allowance towards such deficiency as may, under all the considerations, be found to be reasonably proper for that purpose. In arranging the tariff of charges, the court took into consideration the probability that the prosecutions, on the success of which the compensation of these officers is dependent, would occasionally be defeated, or fail to yield proceeds adequate to their satisfaction; and, accordingly, the estimates were framed with a view to meet such deficiencies. Moreover, the bills up to July 17, 1862, were allowed in contemplation of the payment of $6,000 per annum to each commissioner. Since the passage of the act of limitation of that date, the prospective assessment on prize proceeds should be diminished accordingly, whenever the court is satisfied that the confiscation may be carried into effect, so as to secure their compensation to the commissioners upon a lesser rate of allowance out of the fund. The Hatie. THE SCHOONER HATTIE AND CARGO. A charge by the prize commissioner, in his bill of costs, of one per cent, custody fee on the proceeds of the vessel and cargo, disallowed. The act of July 17, 1862, (12 U. S. Stat. at Large, 608, § 12,) forbids the allowance to a prize commissioner in this district of any larger emolument than a salary of $3,000 a year. (Before BETTS, J., January, 1864.) BETTS, J.: This is a case of the adjustment of compensation to Prize Commissioner Elliott, upon facts and circumstances similar to those which existed in the case of the Merrimac. The prize was arrested off Wilmington, N. C., June 23, 1863, and was sent into this district for adjudication, and here libelled on the 3d of July thereafter. A defence was interposed December 17, 1863, and a final decree in the suit was rendered by the court December 28, 1863. The bill of costs was submitted to the court for adjustment on the 5th of January in stant. In this case, as in that of the Merrimac, the commissioner charges one per centum custody fee, computed upon the joint products of the vessel and cargo, being the sums of $64,146 18 from the cargo, and $2,025 from the vessel. The custody fee amounts to $661 71, and, in addition, there are special items of service, which make the whole charge amount to $846 11. The evidence presented in support of the aggregate charge consists of the deposition of the prize commissioner who performed the duties, made on the 5th of January instant, who says 'that the bill is true and correct, according to the best of his knowledge, information and belief, and that the charge of $846 11, above mentioned, is not more than a just and suitable compensation for his services in the cause, as he verily believes ;" and of the consent in writing of the United States district attorney that the bill be taxed at the sum of $846 11. 66 The charges claimed in the bills of the United States prize commissioners for services performed prior to the act of Congress of July 17, 1862, were assessed provisionally by the court, subject to adjustment and payment at the treasury, pursuant to the laws of Congress in relation to indeterminate claims against the government, the bills almost universally claiming repayment of disbursements or liabilities, as well as conjectural valuations of official acts not identified by proofs as specific performances. The act of July 17, 1862, (12 U. S. Stat. at Large, 608, §12,) having forbidden the salary to a prize commissioner to be increased in any case, under any of the prize acts, so as to exceed $3,000, I feel con |