854
FEDlilRALRlllPORT.ER. "
common law, from ancient English statutes, Or from the practice of the court& of;'the United States. Congress has provided that a writ of error froni th'is court to the district court shall be sued out within one year from the judgment below. Rev. St.§ 635. And the only regulation that it has made as to bills' of exceptions is that contained the fourth section: in section 953 of the·Revised Statutes, of the act of 1872, and providing that they shall be sufficiently authenti.cated by the signatare of the"presiding judge, without any seal. The bill of exceptioi1smight there-fore be, allowed/by the judge at any tiItle during the term at which the was rendered. Muller v. EhlIJrs,91 U. S. 249; Hunnicutt v. PerJton, 102 U. S; 333. And the parties having agreed that it should be treated as if filed on the last day of that term, the motion to dismiss must be denied. See Perru v. Meehan. Mut. Ins. {)o. lQfED. REP. 479; U. S. v. Griswold, Id. 810; Castro v. De U1'iarte, 12 FED. REP. 250, and note, 259. 'i (" ·
.DAVIES "and
others, Adm'Jis,t1.
LATHROP,
Receiver, etc. 1882,)
{Oircuit Oourt. S.D. N6'I/) York. July BILL O'!l ExCEPTIONS.
Requisitefqrreview of point,s brought up.
Trial. WlLLACE, q. ;r.The plaintiffs'motion for a new trial is dismissed. The otlierbranch of the motion will not be considered until a biU of exceptions is prepared and preaented for settlement. >, '"
On Motion for
See S. C. ante, 853.
855 HYMAN v. CHALltSand others..
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HOPKINS and another v. CHALltSartdothers. (Circuit Court, D. Colorado. " . : '
July 22; 1882:)
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Where, under the laws of the state, a sheriff may appoint a: persoil to perform a ..Ilpepial service, a marshal, under 788 of the Revised has the same authority, and the person so appointed by hi,m is an offi,cer dejacto, and a pers1m served with process by such appointee cannot dispute his authority on the ground that he had not taken the oath, of office, as relluired b! the statutp. relation to the of deputies. .
DEPUTIES-OFFICER DE FACTO:
I
On Motion to Quash Marshal's Return·. ,HALLETT, D. J. In the case of Hyman againatChales and others, and Hopkins and 'another against Chales and others, ·defendants ttlove to quash the marshal's rettirnto the summons'oIl"llle that the person who servedthe'summops was specially appointed a deputy to serve it; and that it does not appealr that such person had taken the oath of office as required by the, statute in ielationto the of deputies. " .. Section 788 of the Revised Statutes provides th8ltmarshalsand their deputies shall have the samE! power in eXet;lUting the laws of the United States as and their deputies; in such, st.ate by law in executing the iiLws thetepf. thatnti,der the'laws of the,state a sheriff may appoint a tpperfdnn special as servipg a 'particular no "reeson)s 'perceived for saying that a tnarshal under this :t1ie, same 'authority.. Upon general principles, -ahal may appoint to perforttl ail; lle: !ri'ayappoirit t4afpetBcJD 'has one to perform a patticilla,r service; and taken the oath of' Qffice as pteacribed ia not a 'who' may be affected by. the duty to be' perfornied: . It may 'be' a question' whIch can, be raised 'by the'ma-Mial hilnselfas to "'hether the deputy is properly in his to, pel:form he is an officer de facto, if no nlo1:e:' 'lt not the 'person who may be summonedto dispute hiElauthonty, fbr that reason· j . : I· '.
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