Peters v. Rand

Mr. Justice Gordon

delivered tbe opinion of tbe court, February 2d, 1885.

This was an action of assumpsit brought by tbe plaintiff, Theodore D. Rand, against the defendant Emanuel Peters, for tbe recovery of tbe value of services alleged to have been rendered by tbe former to tbe latter in and about tbe taking of certain depositions under a commission issued from tbe Circuit Court of Kent County in tbe state of Maryland.

Tbe proceedings were in equity, in which one Annie G. Eno was tbe complainant, and tbe said Emanuel Peters defendant. This commission was issued at tbe instance of tbe said complainant to tbe plaintiff in tbe case in band, under warrant of wlficb be took the testimony of witnesses for both Eno and Peters.

When tbe commission was thus executed, be mailed it with tbe testimony to tbe clerk of tbe court from which it issued, and on final bearing of tbe ease in Maryland there was a decree inter alia, as follows; “ that the costs in tbe case shall be equally divided and paid by tbe respective parties to tliis suit, each party to pay one half thereof, and that the clerk of this court in taxing the costs of suit shall allow to Theodore D.. Rand, commissioner; to execute the commission to take testimony issued to Pennsylvania, only the sum of four dollars for each day or part of a day he may have been engaged in the execution of his commission, as appears by the return of said eommisssion filed in- tins court.” In obedience to this order, the clerk of the said court taxed the costs thus allowed to the commissioner, at the sum of forty dollars and twenty-eight bents. ' The one half of this, as per decree, was tendered bjl Peters to Rand, and upon the refusal of the latter to receive it, the money thus tendered was paid into the Circuit Court.

Under these circumstances, we cannot see how the plaintiff can sustain' this action. ' In accepting and acting under the commission directed to him he became, pro re nata, an officer of the Circuit Court for the County of Kent, and. exercised the power of that court in the examination of the' witnesses brought before him: Frank v. Colhoun, 9 P. F. S., 381. Such being the case, that court, in the absence of any statutory provision, had the undoubted right to fix Ms compensation and to direct how it should be paid. This, of course, excludes the possibility of the plaintiff’s recovery from- the defendant on a quantum meruit, since the-court, having jurisdiction of the parties, and of his compensation, has fixed and. determined the amount which he shall receive. If he were unwilling to submit liimself to that jurisdiction he should have, refused to act under its commission, but having voluntarily put himself in the position of an officer of the Circuit Court, he must sub-' mit to its decree fixing his compensation. He might, alsox have avoided the result here stated by' a special contract with both or either of the parties, but of such a contract there is no evidence; on the contrary, the plaintiff himself positivel}swears that there was notMng of the kind. He says : “ I made-no contract with any of the parties before I entered on my duties under the commission. The depositions were not taken in pursuance of any contract.” Under this state of the case, the plaintiff must abide by the allowance made him by the. court whose commissioner he was. Such certainly is the rule of our own state; our courts, in the absence of statutory regulation upon this subject, fix the compensation of masters,. examiners, and commissioners; this is what such officers must expect and act in view of, and there is no reason why a commissioner should expect anytMng else when acting for a court in a sister state.

Under the view of tMs case as above stated, we feel ourselves obliged to sustain the second and third specifications of error. ' The remaining seven need not be noticed, as under the ruling adopted, their disposition is of no material consequence.

The judgment is reversed.