
    ANDREW J. MATTHEWS AND THOMAS GUNN v. THE UNITED STATES.
    [No. 19367.
    Decided January 25, 1897.]
    
      On the Proofs.
    
    Deputy marshals seek to recover a reward of $500 offered for the arrest of one McNeil for violating the revenue laws in Florida.
    I.The pay of United States deputy marshals is not fixed hy law, nor . are they paid out of the Treasury of the United States for services.
    II.A deputy marshal is not an officer “or any other person whose salary, pay, or emoluments are fixed hy laxo or regulation” as provided in Revised Statutes, § 1765; nor is he a civil officer receiving' “ a salcvry and compensation alloxoed hy laxo,” as provided hy the Aet June SO, 1874 (18 Stat. L., 109).
    III.The purpose of section 1765 and of the act 20th June, 1874, was that officers receiving a salary or compensation allowed hy law should not receive other compensation, except as stated in the several acts not applicable to this case.
    IY. The payment of a reward to an officer for services within the scope of his official duties is contrary to public policy.
    Y. Under the common law “ hue and cry” could he raised hy any private citizen, and a constable and his attendants had the same power, protection, and indemnification as if acting under the warrant of a justice of the peace.
    VI. All duties devolving on a deputy must he performed in the name of his principal; he has no official character,
    VII. A deputy is not the prescribed official agency for making arrests. His actions depend not on the law, hut on his employer.
    VIII. Where a reward is offered in general terms for the arrest of an offender and the arrest is made hy a regularly appointed deputy, assisted hy a special deputy for the purpose, they are properly joined as claimants and are entitled to the reward.
    
      The Reporters’ statement of the case:
    The following are the facts in tlie case as found by the court: I. The following is the letter of the Attorney-General under which the marshal offered the reward therein named for the arrest, delivery, and conviction of Asa McNeil:
    “Department of Justice,
    “ Washington, I). 0., July 31,1891.
    
    “E. C. Weeks, Esq.,
    
      uJachsonville, Florida.
    
    
      “ Sir : Torir letter of July 24th is received. You are authorized to offer a reward of five hundred dollars ($500) for the arrest and delivery to you, at Jacksonville, of Asa McNeil, chief of conspirators, who fired upon revenue deputies at Boni-fay, Holmes County, last fall, this reward to> be paid upon conviction of said McNeil.
    “Very respectfully,
    “W. H. H. Miller,
    “ Attorney -General?
    
    II. Tbe alias capias, the marshal’s return, and the clerk’s certificate in the matter of the arrest of Asa McNeil are as follows :
    “In the Circuit Court of the United States, fifth circuit, northern district of Florida.
    • “To the marshal of the United States, northern district of Florida, greeting:
    “ You are hereby commanded to arrest Asa McNeil, if he be found in your district, and him safely keep so that you have his body forthwith before the judges of the Circuit Court of the United States for the northern district of Florida, at the courthouse in the city of Pensacola in said district, to answer unto the United States upon an alias capias against him in said court.
    “ Witness, the Honorable Melville W. Fuller, Chief Justice of the Supreme Court of the United States and the seal of this court, at the city of Pensacola, this 4th day of May, one thousand eight hundred and ninety-two.
    “Philip Walter, Cleric.
    
    “Per W. W. Potter, Dep. Cleric.
    
    
      “Marshal’s return. — Eeceived this alias capias on the 4th day of May, A. D. 1892, at Pensacola, Florida, and executed the same by arresting the within-named Asa McNeil on the 11th day of July, 1892, at three miles east of Cerro Gordo, Fla., and have his body now before commissioner’s court this 16th day of July, A. D. 1892.
    “ Edmunds C. Weeks, U. S. Marshal.
    
    “ By A. J. Matthews.
    “(Endorsed:) Alias capias. Asa McNeil.
    “United States oe America,
    
      “Northern District of Florida:
    
    “ I, Frederick W. Marsh, clerk of the United States Circuit Court in and for the fifth judicial circuit and northern district of Florida, hereby certify that the foregoing page is a true and correct copy of a certain alias capias now on file in this court, and that, according to the records and journal entries of this court, an indictment was found against one Asa McNeil, for a violation of section 5518, by tbe grand jury for tbe northern district of Florida empanelled by said court on tbe 25th day of March, A. D. 1891, and that be was tried and convicted on the 29th day of October, A. D. 1892. And that from tbe records it appears that tbe foregoing capias, a copy of which is heretofore set out, was tbe one issued for tbe arrest of said Asa McNeil to answer said indictment.
    “In testimony whereof I have hereunto caused tbe seal of said court to be affixed at tbe city of Pensacola, this twenty-fourth day of January, in tbe year of our Lord one thousand eight hundred and ninety-six.
    “[seal.] ■ “F. W. Marsh, Cleric.”
    
    III. The claimant, A. J. Matthews, was appointed United States deputy marshal in November, 1890. He held this position and continued to exercise the duties thereof until April 22,1894.
    IY. The arrest of Asa McNeil was made on the 11th day of July, 1892, by the said A. J. Matthews, at that time deputy United States marshal and assistant to said United States Marshal Edmunds 0. Weeks, and principally through his (Matthews’s) efforts, except as appears in the following finding:
    Y. The claimant, Thomas Gunn, was appointed United States deputy marshal two or three months prior to the arrest of Asa McNeil as special deputy for this case, and held the office of United States deputy marshal at the time of the arrest of the said Asa McNeil. This claimant, Thomas Gunn, participated in the arrest of the said Asa McNeil, but in wrhat manner and to what extent does not appear.
    YI. After the conviction of Asa McNeil as aforesaid, the marshal, E. 0. Weeks, under date of April 28,1893, inquired of the Attorney-General to know if the claimant Matthews was entitled to the reward so offered for the services performed by him as deputy marshal, and in response thereto answer was made as follows:
    “Department op Justice,
    “W ashington, D. G., May 29,1893.
    
    “E. 0. Weeks, Esq.,
    “ United States Marshal, Jacksonville, Ma.
    
    “ Sir : In your letter of April 28,1893, you ask if Deputy Marshal A. J. Matthews was entitled to receive the reward for the capture of Asa McNeil.
    “This matter was investigated by Department Examiner W. E. Hazen, who reported on May 22,1893, that Mr. Matthews was a deputy marshal by your appointment, through whose efforts, ‘principally, although not entirely, McNeil ever submitted to arrest; that upon the arrest the deputy delivered McNeil into your custody; that the latter was found guilty March, 1893, and sentenced to imprisonment at Columbus, Ohio, penitentiary, and that before removal to the penitentiary he died March 26, 1893, of lung trouble or by suicide.’ These facts have been mainly stated by you and are now verified by the examiner.
    “The decisions of the Supreme Court of the United States and the First Comptroller of the Treasury in the adjustment of accounts are adverse to the payment to a deputy marshal of an extra compensation for services directly in the line of his duty as a deputy. They uniformly agree in the statement that where there is a fixed compensation for a specific service there can be no additional compensation. The services performed by the deputy for which he claims payment of the reward were in the line of his duty. He had a warrant of arrest for the fugitive, and his services were wholly official and not extra official.
    “Yery respectfully,
    “Lawrence Maxwell,
    
      “Acting Attorney-General?
    
    Thereafter, on June 12, 1893, the following letter was addressed to the claimant, Matthews:
    “ Department oe Justice,
    “ Washington, D. O., Jime 12, 1893.
    
    “A. J. Matthews, Esq.,
    
      u Deputy U. 8. Marshal, Oerro Gordo, Ma.
    
    ■ “Sir: Your letter of June 6, 1893, is received. It refers to Department letter of May 4, 1893, about your claim for the payment of the reward in the matter of the arrest of McNeil.
    “On May 29,1893, this Department replied to E. 0. Weeks, United States marshal for the northern district of Florida, to the effect that a deputy marshal having a warrant in hand for the arrest of a fugitive from justice should do all in his power to make the arrest without exacting an additional compensation for his services beyond the compensation usual for a deputy in making any arrest.
    “Yery respectfully,
    “Wm. A. Maury,
    
      “Acting Attorney-General?
    
    
      Mr. B. B. McMahon and Mr. George A. King for the claimant:
    The claimants were not officers of the United States when they made the arrest, but, even if they were, that fact would not alter the case. There is not only no public policy adverse to tlie allowance of rewards to officers of tbe United States, but, as a general rule, the preference is to promise these rewards to Government officers.
    In the case of Dorsheimer v. United States (7 C. 01s. B., 43, 44), it was said by the Supreme Court in regard to rewards under the revenue laws “ the offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and industry in detecting fraudulent attempts to evade the payment of duties and taxes.”
    The Government thus gets the benefit of having the action taken by its own officers, under its own supervision and control, in preference to such as might be taken by irresponsible parties, who, in their eagerness for the stipulated compensation, might commit many unlawful acts which the Government would be unwilling to sanction.
    The second of these claimants, Gunn, seems to have thought it necessary, in order for him to take the necessary steps toward earning the reward, that he should get a commission as a special deputy for this particular case. In this view he was clearly right. For him to have undertaken the arrest of a desperado like McNeil involved in any case great personal danger to himself, and to have undertaken to do so without a warrant or official authority of any kind would have exposed, him likewise to great legal danger. Had McNeil, for instance, resisted arrest and been killed in so doing, the arresting party, if composed of deputy marshals, would, of course, have been held justified; but, if of mere private persons intent on earning a contingent reward, they would certainly have been indicted for murder and probably convicted. A technical plea that they were in pursuit of a felon, difficult to establish in any court, would have availed them little in a community where illicit distilling is regarded as a venal offense and the shooting of revenue deputies at sight as an action involving no turpitude.
    
      Mr. John G. Gapers (with whom was Mr. Assistant Attorney. General Bodge) for the defendants:
    If deputy marshals could get the benefits of special rewards for the capture of fugitives, criminals would in many instances be “ shadowed” by deputy marshals and kept shadowed until a reward was offered, and then the arrest would be made. A deputy marshal should promptly and properly perform his duty and arrest persons for whom he has a warrant, and for so doing he receives a regular and fixed compensation.
    Claimants’counsel gets away from the real point in this case by fixing it in his mind as similar to the case of a deputy marshal bringing suit against the Government for certain fees. It is true that it has been held that a deputy marshal could not maintain suit for his share of fees against the Government fox-services rendered as deputy marshal (Powell v. United States, 60 Fed. Rep., 687), but the case at hand does not touch the same matter at all, and presents a wholly different question. The reason a deputy marshal can not maintain such a-suit (for his fees) is simply this: There is no privity of contract for compensation between him and the United States. Whether he is or is not an officer of the United States has nothing to do with the question.
    But all deputy marshals, whether general or special, are officers in the public service for whose compensation Congress annually makes appropriations to be paid out and accounted for by the marshals as disbursing officers; and so far as their compensation comes from the fees earned by them the amount thereof is regulated by law; the law allows the marshal to fix the amount payable to them out of the fees they earn, subject to a maximum sum.
    They are officers in the public service; a deputy marshal takes the same oath of office as is prescribed for the marshal, and is removable by the judge of the District or Circuit Court of the United States. (§ 782, R. S., 147; Brightley’s Digest, Yol. I, p. 596.)
    In Abbott’s National Digest (p. 262) a deputy United States marshal is defined as follows:
    “ He is a sworn officer, known to the law. * * * (Seventh Cir. Mich., 1842, Spofford v. Goodell, 3 McLean, 97.) The deputy marshal is an officer of the district court, amenable to its jurisdiction for malfeasance in office. * * * (3 Stat. L.. 395, S. Dist. N. Y., 1849; The Laurens, Abb. Add., 508, S. P. Seventh Circ. Mich., 1844. Bagley v. Y., 3 McLean, 465.)
    “A deputy marshal is equally liable with the marshal to an attachment for contempt for not paying over money withheld in violation of his official duty.” (S. Dist. N. Y., 1849. U. S. v. Lawrence, 7 N. Y. Leg., Obs. 174.)
    
      In tbe case of the United States v. Strobaeh, reported in the Department Justice Eegister for 1884 (p. 234), the court held that—
    “The law authorizes the appointment of deputy marshals (Eev. Stats., §780) and prescribes their oath of office (E. S., §782) in which they are required to swear that they will take only their lawful fees. In all cases, except where specially provided by statute, a deputy marshal has the same powers and may perform the same duties as the marshal.”
    Section 5398, Eevised Statutes, provides for the punishment of persons resisting, obstructing, or opposing any officer of the United States in serving or attempting to .serve or execute process, etc. It is well known and voluminously reported that persons have been punished for resisting arrest by United States deputy marshals. Why was this done if these deputy marshals were not “officers of the United States'?” The deputy marshal is not a constitutional officer, but he is an officer of the United States under its statute law, and so recognized and referred to at length in many places in our statutes. On this very question we have the case of Nathan Luhins (3 Wash. O. O. E., 335), where, on an - indictment for resisting the marshal of the United States in the execution of a warrant issued by the judge of the District Court of theUnited States, the resistance and assault were as a matter of fact upon the deputy marshal, the indictment was sustained, based, as it was, upon a United States statute for “resisting an officer,” etc. In. 2 Wash. C. O. E., 169, in the Lowry Case, defendam s were all found guilty of resisting “an officer” of the United States, the officer being a deputy marshal, of whom the court say:
    “A deputy marshal, whose commission from the marshal was called for and produced, with a certificate of his having taken the oath required by Congress, etc.”
    See also 2 Curtis C. 0. E., Stowell Case (p. 153), and extract from charge (p. 639), and case of Wnght and Wade v. United States (158 U. S. E,, 232).
    Claimants’ counsel denies the proposition that pubiic policy (though recognized by our statutes and the opinions of our courts) is against public officers receiving rewards for the performance of work directly in tbe line of tbeir official duty. I will therefore furnish the following authorities on that subject:
    In the case of Stamper v. Temple (6 Humph., 113) the opinion of the Supreme Court of Tennessee expresses in plain language the doctrine which is observed and expressed in the other authorities cited below.
    The rule of public policy is well known. An officer in the public service can not be allowed to accept or receive a reward offered where the services performed were within the scope of his official duties.
    Or, take another view of the case; regard the deputy as the agent or employee of the marshal, and nevertheless he can not recover the reward,' because he was employed by the marshal to search for and apprehend the felon. (Pruitt v. Miller, 3 Ind., 16; Bussell v. Stewart, 44 Yt., 170; St. Louis, &c., R. Go. v. Grafton, 51 Ark., 504.)
    Again, when a duty is required to be performed by a person in any public or quasi-public employment, a promise to him of extra compensation as an inducement to him to perform that duty does not constitute a valid contract for such compensation when the duty has been performed. (Callaghan v. Hallett, 1 Cai., N. Y., 104; Bartlett v. Wyman, 14 Johns, N. Y., 260; Harris v. Watson, Peake, 72; Harris v. Garter, 3 E. & B., 559; Stilh v. Myrielc, 1 Camp., 317; 6 Esp., 129.)
    It has been clearly shown in this connection that the deputy marshal’s compensation for services rendered to the United States, though paid him .directly by the marshal, is provided for specifically by Congress and “allowed by law.” (Act Aug. 5,1892, 27 Stat., 385, and subsequent appropriation acts.)
   Peelle, J.,

delivered the opinion of the court:

The one question presented in this case is whether the claimants, for services rendered by them as United States deputy marshals in making the arrest, are entitled to recover the reward of $500 offered therefor by the Attorney-General, as set forth in the findings.

In the Act March 3, 1891 (26 Stat. L., 948, 985), making appropriations for the sundry civil expenses of the Government for the year ending June 30,1892, the following appropriation and provision were contained:

“Prosecution of crimes: For the detection and prosecution of crimes against the United States, preliminary to indictment, * * * under the direction of the Attorney-General, * * * thirty-five thousand dollars.”

Under the provisions of that statute the Attorney-General directed the following letter to E. C. Weeks, esq., then United-States marshal for the northern district of the State of Florida:

“Department oe Justice,
“ Washington, D. G., July 31,1891.
“E. 0. Weeks, Esq.,
Jacksonville, Fla.
“Sib: Your letter of July 24 is received. You are author-. ized to offer a reward of $500 for the arrest and delivery to you, at Jacksonville, of Asa McNeil, chief of the conspirators who fired upon revenue deputies at Bonifay, Holmes County, last fall. This reward to be paid upon the conviction of said McNeil.
“Very respectfully,
“W. H. H. Millee,
1 ‘ Attorney-General.”

On the 11th July, 1892, the person named in that letter was arrested by the claimants and delivered into the custody of the United States marshal before a United States commissioner, and on the 29th October following he was tried and convicted.

The defendants’ first contention is that the arrest was made by the claimants as officers, in a branch of the public service, whose pay was fixed by law, and that such services came within their official duties, for which no additional pay can be allowed by reason of Revised Statutes, section 1765, and the act of June 20, 1874, section 3 (1 Supp. to R. S., 2d ed., p. 18), which read:

“ Sec. 1765. No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation.”

Act June 20,1874:

“That no civil officer of the Government shall hereafter receive any compensation or perquisites, directly or indirectly, from the Treasury or property of the United States beyond his salary or compensation allowed by law:
11 Provided, That this shall not be construed to prevent the employment and payment by the Department of Justice of district attorneys as now allowed by law for tbe performance of services not covered by tbeir salaries or lees.”

The defendants’ second contention is that the “ arrest and delivery” by the claimants were within the scope of their official duties, and that therefore the payment of the reward to them would be against public policy.

Deputy marshals are authorized to be appointed by the marshals in their respective districts, as provided by Revised Statutes, section 780, which is as follows:

“Every marshal may appoint one or more deputies, who shall be removable from office by the .judge of the District Court, or by the Circuit Court for the district, at the pleasure of either.”

By Revised Statutes, section 782, marshals and deputy marshals are required to take the same oath, while by Revised Statutes, section 788, marshals and their deputies are given the same power “in executing the laws of the United States as the sheriffs and their deputies in such State may have by law in executing the laws thereof.”

In respect to the maximum compensation of deputy marshals, Revised Statutes, section 841, provides:

“* * * The allowance to any deputy shall in no case exceed three-fourths of the fees and emoluments received or payable for the services rendered by him, and may be reduced below that rate by the Attorn ey-General whenever the returns show such rate to be unreasonable.”

By that statute the Attorn ey-General is authorized to reduce the rate of allowance to deputy marshals below three-fourths of the fees for services rendered by them “ whenever the returns show such rate to be unreasonable,” but he is not thereby authorized to fix their salary or pay.

This was the construction given to the statute in the Phillips Case (11 C. Cls. R., 570, 574).

Soon after that decision the Department of Justice promulgated a regulation (1876, p. 202) limiting the compensation of deputy marshals to $3,000 per year. (See case Schloss v. Howlet, 81 Ala., 269.)

In speaking of the distinction between a guard at the jail, who received a regular salary fixed by the Secretary of the Interior (5 C. Cls. R., 523), and a deputy marshal, the court in the Phillips Case (supra) said:

“* * * The guard was receiving a regular salary from the Government, but this deputy marshal received no salary or pay of any kind from the Government, but only a certain proportion of the emoluments earned by him for the marshal, to be paid to him by the latter out of those emoluments.” (See the case United States v. Meigs, 95 U. S., 748.)

° Still more conclusive on this point is the case of Douglas v. Wallace (161 U. S., 346, 348), where it is said:

“Although deputies are recognized by law as necessary to the proper administration of the marshal’s office, they receive from the Government neither salaries nor fees, and the Government has no dealings with them. The accounts are rendered by the marshal, who charges not only for his own services, but for those of each of his deputies, who are appointed by the marshal personally, and are accountable to him alone, though subject to removal by the court at its pleasure. * * *
“Their claims for services against the marshal stand upon the same footing as those of an ordinary employee against his employer, and are not even contingent upon the marshal collecting his own accounts against the United States.”

So that, in respect to the compensation of deputy marshals, whether they be considered as officers in a branch of the public service or otherwise, their pay is not fixed by law or regulation, nor are they paid any sum out of the Treasury of the United States for services rendered by them; hence, in this respect, whatever their relation may otherwise be, there is no privity between them and the United States.

The question as to what constitutes an officer under the Constitution of the United States was considered by the court in the case of The United States v. Germaine (99 U. S., 508), following which the court in the later case of The United States v. Mouat (124 U. S., 303, 307) said:

“In that case it was distinctly pointed out that, under the Constitution of the United States, all its officers were appointed by the President, by and with the consent of the Senate, or by a court of law, or the head of a Department; and the heads of the Departments were defined in that opinion to be what are now called the members of the Cabinet.”

This same question was considered by this court in the recent case of Baxter (ante, p. 75).

Although a deputy receives his appointment from the marshal, to whom he is alone responsible, such appointment as well as the qualification and duties of such deputy are authorized by law, not, however, for the purpose of enabling such deputy to carry into effect any duties devolving upon him as such, but “as necessary to a proper administration of the marshal’s office.” True, if a deputy be resisted by any one in the execution of a warrant or other process as defined in Revised Statutes, section 5398, such person would be liable to indictment thereunder, as a deputy marshal is an officer within the meaning of that section to serve process, as is also the keeper of a State jail into whose custody a person has been committed by legal process issued by a United States judge. (United States v. Tinglepaugh, 3 Blatch., 425; United States v. Martin, 14 Fed. R., 817; see also Wright & Wade v. United States, 158 U. S., 239.)

Deputy marshals have been held amenable to the law for a violation of their duties as such (United States v. Strobach, 48 Fed. R., 902), and they may perhaps be held liable to an attachment for contempt for not paying over money withheld in violation of their duties, as they are in a sense officers of the court and subject to removal thereby. (S. Dist. N. Y., 1849; United States v. Lawrence, 7 N. Y. Leg. Obs., 174.)

Certain it is, however, that a deputy marshal is not an officer “or any other person whose salary, pay, or emoluments are fixed by law or regulation,” as provided in section 1765, nor is he a civil officer receiving from the United States “ a salary or compensation allowed by law,” as provided by the Act June 20, 1874 (supra).

The compensation to be paid a deputy is a matter of agreement between him and the marshal appointing him; but that the marshal shall not receive credit in the settlement of his emolument accounts for a sum in excess of “a proper allowance to his deputies” it is provided that a deputy shall not be paid a sum in excess of “ three-fourths of the fees and emoluments received or payable for services rendered by him.”

The limitation is rather upon the marshal than upon the deputy, as the material purpose of the statute evidently was that the marshal, in making his emolument returns, as required by Revised Statutes, section 833, shall include therein at least one-fourth of tbe “fees and emoluments” accruing for services rendered by such deputy, to the end that there shall be no door left open for abuse through the earnings of his deputies by which he might thereby increase his maximum compensation.

The purpose of section 1765, as well as of the act June 20, 1874, evidently was that officers in any branch of the public service who were receiving from the Treasury of the United States a fixed salary or other compensation allowed by law should not receive therefrom any additional compensation in any form whatever, except as stated in the several acts which are not applicable in this case. (Hoyt v. United States, 10 How., 109, 141, and United States v. Sanders, 120 U. S., 126, 129.)

But as the claimants in this case received from the Government neither salaries, fees, nor other compensation, those statutes are not applicable to them.

Were they officers upon whom devolved the official duty of making the arrest and delivery of the person for whom, coupled with his conviction, the reward was offered, and, if so, would the payment of the reward to them or either of them be against public policy — the policy of the law — so earnestly contended for by the defendants.

A public officer can not, in the absence of a statute or an appropriation therefor, recover a reward offered if the services performed in connection therewith come within the scope of his official duties, as the payment of a reward in such cases is against public policy. (Gilmore v. Lewis, 12 Ohio, 281; Bronnenberg v. Coburn, 110 Ind., 169; Harris v. Beaven, 11 Bush (Ky.), 113; Pool v. Boston, 5 Cush. (Mass.), 219; Warner v. Grace, 14 Minn., 487; Day v. Putnam Ins. Co., 16 Minn., 408; In re Russell, 51 Conn., 577; Davis v. Burns, 5 Allen (Mass.), 349; Ring v. Derlin, 68 Wis., 384.)

As was well said by the court in the case of Bent v. Wakefield, etc., Bank (4 C. P. Div., 6):

“There are strong arguments of expediency, touching the administration of justice and the interest of the State, why constables should not be allowed to receive rewards. The expectation of rewards would offer great temptation to delay an act of service, by which delay the criminal might escape, or, in a case like the present, to delay taking into custody a criminal who gave himself up, so that the constable might appear to use exertions to procure complete information, and or that to claim the reward. There would also be a temptation, particularly to those constables in the detective service, to look to bribes or to seek promises of i’ewards from persons anxious to recover their property, and unless such were offered to be inert in their efforts.”

On the other hand it has been held that—

“If a private person is desirous of making an arrest in order to obtain a reward, it seems to us much better that he should do it under a proper warrant and appointment as special constable than that he should do it without any warrant at all.” (Hayden v. Souger, 56 Ind., 42.)

This latter holding seems to apply to the claimant Gunn, who appears to have procured himself to be appointed as a special deputy marshal for the particular case and participated in the arrest.

Consequently the services performed by him were not within the line of any official duty devolving upon him for which he was paid by the defendants or by the marshal, but was a service performed merely to enable him to procure the reward.

The reward offered was not for information leading to the arrest, but for the “ arrest and delivery” to the marshal of the person named in the offer. “These are quite distinct things,” as said in Shuey v. United States (92 U. S., 73, 76), and ordinary prudence would dictate to any citizen seeking a reward the importance, if not the necessity, of a warrant to effect the purpose. It is questionable whether a warrant would be delivered by a marshal into the hands of anyone for the purpose of making such arrest unless theperson intrusted therewith was first authorized therefor by deputation by the marshal.

Certain it is that one who makes an arrest without lawful authority, as by means of a warrant or other process, does so at his own peril, and hence responsible citizens are not apt to assume such risks.

Under the common law, “hue and cry” could be raised by any private citizen, and it was made his duty to “ acquaint the constable of the vill with all the circumstances” in order that he might search and raise the neighborhood and make pursuit; “and in the prosecution of such hue and cry the constable and his attendants have the same powers, protection, and indemnification, as if acting under a warrant of a justice of the peace;” but it was also provided that “ if a man wantonly and maliciously raised an liue and cry without cause, he shall be severely punished as a disturber of the public peace.” (Blackstone’s Commentaries, vol. 2, book 4, p. 294.)

In the case of Kurtz v. Moffitt (115 U. S., 487, 504) it was said:

“The rule of the common law, that a peace officer or a private citizen may arrest a felon without a warrant, has been generally held by the courts of the several States to be in force in cases of felony punishable by the civil tribunal.”

It was held in that case that such officers could not lawfully arrest a deserter from the Army “without express order or warrant,” and such was the decision in the case of Trask v. Payne (43 Barb., 569).

It is to the manifest interest and welfare of society that the laws be obeyed, and to effect these ends the wisdom, the ingenuity, and experience of the ages have been drawn upon; and as one of the results, and in addition to the ordinary legal metliod therefor, the citizen has been stimulated to exert himself in ferreting out crime and bringing the offender to punishment, by means of rewards.

And so the offer by statute to the collectors of a portion of the penalties inflicted upon persons for attempting to defraud the revenues was, “to stimulate and reward their zeal and industry in detecting fraudulent attempts to evade the payment of duties and taxes,” as held in the case of Dorsheimer v. United States (7 Wall., 166, 173).

By Revised Statutes, section 787, it is made—

“The duty of the marshal of each district to attend the District and Circuit courts when sitting therein, and to execute, throughout the district, all lawful precepts directed to him and issued under the authority of the United States.”

So that whatever duties devolve upon a deputy must be performed in the name of his principal, the marshal, to whom he is alone responsible and from whom such duties emanate.

Independent of the marshal, therefore, a deputy, in the discharge of duties devolving upon the marshal for which he is deputized, has no official character.

Although in case of the death of the marshal his deputies are continued in office, as provided by Bevised Statutes, section 789, they are only permitted to execute such office in the name of the deceased, and if in the meantime there shall be any default or misfeasances in office by snob deputies, tbe same ‘‘shall be adjudged a breach of the conditions of the bond given by the marshal who appointed them.”

By Revised Statutes, section 783, the marshal is required to give a bond “for the faithful performance of said duties by himself and his deputies,” so that for the discharge of the duties of such deputies the marshal is alone responsible to the United States.

In the case of Russell v, Stewart (40 Vt., 170) it was held in substance that a deputy sheriff, having no process in his hands to execute, was under no obligation to go in search of an offender, and that if he did so, and arrested him,- he was entitled to the reward offered therefor.

Thus showing that a deputy is not an officer upon whom the law devolves any official duty other than that which may come to him from the marshal from time to time by the delivery to him of process to execute in his name.

In the case of Powell v. United States (60 Fed. R., 687), being an action by a deputy marshal to recover for services rendered, it was held that he was not an officer of the United States.

From the statutes and decisions to which we have referred we conclude:

(1) A deputy, though appointed by the marshal, is required to take the same oath as the latter, to whom he is alone responsible, and for the faithful discharge of whose duties the marshal gives bond.

(2) He is paid for his services by the marshal such compensation as he and the marshal may agree upon, not exceeding three-fourths of the “fees and emoluments” accruing for services rendered by him, and he is not, therefore, an officer “or other person whose salary, pay, or emoluments are fixed by law or regulation,” nor is he a civil officer receiving from the Government any “salary or compensation allowed by law.”

■ (3) A deputy marshal is not an officer upon whom, as such, the law imposes any official duty, as the only duties he may be required to perforin are those which emanate from the marshal, upon whom alone they officially devolve and for which he is alone responsible.

Therefore a deputy marshal is not the prescribed official agency of the Government for making arrests, like a constable or police officer on whom the duty is devolved by law. His actions depend not on tbe law, but on Ms employer, the marshal, who can withhold a warrant or recall it.

(4) Where a reward is offered in general terms, as in this case, for the arrest and delivery of an offender, and such arrest is made by a regularly appointed deputy marshal, as the claimant Matthews was, assisted by one who was appointed a special deputy marshal for the purpose, as the claimant Gunn was, we think they are properly joined as claimants, and that they are entitled to recover the reward so offered. (Janvrin v. Town Exeter, 48 N. H., 83-86.)

Judgment will therefore be entered in their favor for $500.  