In re Gourdin , 45 F. 842 ( 1891 )

Simonton, J.

The district attorney, presenting the account of W. M. Gourdin, commissioner, under act of congress, (18 St. at Large, 338,) has disallowed sundry items: Drawing complaint, 2 folios, 30 cents; oath, 10 cents; filing, 10 cents; say 50 cents, — 12 in all, $6. Entering return on warrants and subpoenas. Taking 20 acknowledgments at 25- cents each. What is called the complaint in these charges is the sworn affidavit, without which the warrant could not have been issued. That is the practice in the state of South Carolina, (Pressley, Law of Mag. 498; State v. Wimbush, 9 S. C. 309,) to which commissioners in this state must conform, (Rev. St. U., S. § 1014;) and it seems to be required under the fourth amendment to constitution of the United States, and in Eos parte Burford, 3 Cranch, 447, and is certainly required by Justice Bradley in Re Rule of Court, 3 Woods, 503. The district attorney thinks ho is sustained by the ease of Stafford v. U. S., Ct. Cl. No. 15,782. The present case seems to be taken out of that case because such a complaint is required by the laws of South Carolina. The disallowance of the district attorney is not followed, and this item is allowed.

“'Entering returns on warrants and subpoenas.” I have examined these. They include the return, the number of miles traveled, and all other expenses incurred by, the deputy, and are necessary to ascertain what the deputy did and what he ought to get for doing it. The last items are taking acknowledgments on recognizances, 25 cents for each recognizance. A recognizance is not an ordinary bail-bond. It is a peculiar instrument, upon which execution can be issued when it is estreated. The act of the commissioner is needed to give it this character. It must be taken and acknowledged before him, and, if not taken and acknowledged in this way, it is not a recognizance, but an ordinary bond. Heyward v. U. S., 37 Fed. Rep. 764. This item is allowed.