TRESPASS.

See TORTS.

TRESPASS TO TRY TITLE.

See LAND.

TRIAL BY COURT.

See PRACTICE.

TRIAL BY JURY.

See PRACTICE.

TROVER.

See ACTIONS.

TRUSTS AND TRUSTEES.

See USES AND TRUSTS.

TRUSTEE PROCESS.

See WRITS.

TUGS.

See MARITIME Law.

TWICE IN JEOPARDY.

See CRIMES.

UMPIRE.

See ARBITRATION.

UNDUE INFLUENCE.

See CONTRACTS; CONVEYANCES; EQUITY.

§ 1. Powers, generally.— A United States commissioner is made a magistrate of the government, exercising functions of the highest importance. He is an examining magistrate, bound to hear all complaints of the commission of any public offense against the laws of the United States in his district, to cause the offender to be arrested, to examine into the matters charged, to summon witnesses for the government and for the accused, and to commit for trial or to discharge from arrest according as the evidence tends or fails to support the accusation. For the faithful discharge of his duty in these particulars he alone is accountable. He has no divided responsibility with any other officer of the government; nor is he subject to any other's control. United States v. Schumann, 2 Abb., 523; 7 Saw., 439.

§ 2. The thirtieth section of the judiciary act of 1789, chapter 20, gives a commissioner of the circuit court no power to issue a writ of habeas corpus to take from jail a person committed by authority of the United States, and bring him before the commissioner for the purpose of giving his deposition before such commissioner, to be used in a cause pending in the district court. Ex parte Barnes, 1 Spr., 133.

§ 3. Commissioners can only exercise powers expressly conferred, and for that reason have no power to issue writs of attachment returnable to circuit courts of the United States. Chittenden v. Darden, 2 Woods, 437.

§ 4. United States commissioners are officers of the court. In all that they do they are not separate and independent tribunals, but the arms of the court to execute the preliminary work of securing the presence of offenders at the time appointed for arraignment and trial. They have no judicial power to hear and determine any matter whatsoever. Their duties as examining magistrates are ministerial and not judicial, and for that reason a writ of prohibition to control the conduct of a commissioner cannot be issued. United States v. Berry, 2 McC., 58; 26 Int. Rev. Rec., 405.

§ 5. Under sections 914, 990, Revised Statutes United States, a commissioner of the United States may, acting under the state law, take verifications of all necessary papers to procure the arrest of defendants on mesne process. Fulton v. Gilmore, 2 Flip., 260.

§ 6. United States commissioners are not conservators of the peace, and have no control of police regulations in their districts, except where express powers are conferred by a statute of the United States. Their powers and duties in criminal matters are not therefore as extensive as those of justices of the peace, but are confined to those which they must necessarily exercise as examining and committing magistrates in enforcing the criminal laws of the United States, and within this limit of jurisdiction they must conform, as near as may be, to the forms and modes of procedure required by law of justices of the peace. They are not prosecuting officers, but exercise important judicial functions in passing upon questions involving the rights of the government and the liberty of the citizen. United States v. Harden, 10 Fed. R., 802; 4 Hughes, 455.

§ 7. A commissioner empowered to issue a warrant under the statute of the United States of September 18, 1850 (9 Stat. at L., 462), must be such a commissioner as is particularly described in that act, and consequently an averment in an indictment for resisting such a warrant, that it was issued by a commissioner of the circuit court of the United States, is not sufficient. United States v. Stowell, 2 Curt., 153.

8. Taking bail, committing, etc.- A United States commissioner, as respects the taking of bail, has the same power as a state magistrate, and no greater. Hence, where the state statute provided that a magistrate might adjourn an examination of a prisoner for a period not exceeding ten days at one time, and a commissioner, at the request of the prisoner, adjourned the examination for nineteen days, and took bail for his appearance at that time, and

the bail was forfeited, held, on suit against the sureties, that the commissioner's order for the appearance of the accused after such an interval was contrary to law, and the recognizance invalid, and that the consent of the accused could not confer jurisdiction or power to make the order. United States v. Horton,* 18 Int. Rev. Rec., 31; id., 63.

§ 9. A recognizance taken by a commissioner of the circuit court, conditioned for the appearance of the principal "to answer the charge of a wilful and corrupt conspiracy to burn the steamboat Martha Washington on the Mississippi river," is void as not describing an offense made punishable by any act of congress, and cognizable by the circuit court. United States v. Stratton, 6 McL., 274.

§ 10. The authority of a commissioner in arresting, holding to bail, or committing to jail, is expressly limited to complaints or charges importing an offense against the laws of the United States. Ibid.

§ 11. Up to the time of the issuing of a removal warrant the commissioner under whose commitment the prisoner is held has jurisdiction to entertain an application for his release on bail, and, by necessary consequence, jurisdiction to administer an oath to one tendering himself for justification as good bail for such prisoner. United States v. Volz, 14 Blatch., 15. § 12. A United States commissioner has no power to commit a defendant to prison, or take him out of prison, without issuing a written mittimus for that purpose. United States v. Harden, 4 Hughes, 455; 10 Fed. R., 802.

§ 13. By the act of August 23, 1842, a United States commissioner appointed to take affidavits, etc., has power to let to bail one brought before him on a criminal complaint, pending the proceedings, in those states where justices of the peace have a similar power, and a recognizance to appear before him to have the proceedings completed is valid. United States v. Rundlett, 2 Curt., 41.

§14. The powers of a United States commissioner in the matter of taking bail are the same as those of a justice of the peace in the state where the proceedings were had. United States v. Horton, 2 Dill., 94.

§ 15. United States commissioners have power to commit defendants to county jails where there is a state statute permitting the commitment of prisoners by the authority of the United States. United States v. Harden, 10 Fed. R., 802; 4 Hughes, 455.

§ 16. Review or reversal of decision. The court has no authority by way of habeas corpus to reverse the decision of a commissioner for error or irregularity, nor to determine the credit or weight of the evidence on which he acted. In re Kaine,* 10 N. Y. Leg. Obs., 257. § 17. A commissioner acting under the act of September 18, 1850, is in no legal sense a magistrate inferior to the circuit court, and the court in appointing the commissioners under the act acquires no supervisory authority over the proceedings of such commissioners, who are not even officers of the court. In re Van Orden,* 12 N. Y. Leg. Obs., 161.

§ 18. A commissioner appointed by a circuit court under the fugitive slave act of September 18, 1859 (9 Stat. at L., 462), is not a judicial officer of inferior jurisdiction in such a sense that the court can issue a writ of certiorari to such commissioner to call before it and rectify any error in his proceedings under that act. Ex parte Van Orden, 3 Blatch., 166.

19. The commissioner's report of damages in an admiralty case, when parties have been fully heard before him with their proofs, and no question of law is involved in his decision, will be adopted by the court, unless palpable errors or inadvertencies have been committed by him. The Steamboat Narragansett, Oic., 388.

§ 20. The orders of a commissioner in discharging or committing a party brought before him are not in the nature of a final judgment of a court of record, but are subject to the revision of the court. In re Martin, 5 Blatch., 303.

§ 21. On preliminary examinations of persons charged with having committed offenses against the United States, the commissioner has only the authority of a committing magistrate, and his proceeding must be "agreeably to the usual mode of process against offenses in the state where the examination is had. And if by such state practice a committing magistrate has no authority to find a fact, but only to determine whether there is probable cause to put the defendant on trial, this must be the extent of the commissioner's power; and he has no power to determine the probable or improbable credibility of the testimony of the prosecution from extrinsic evidence. United States v. Walker,* 6 Pittsb. L. J., 37.

§ 22. Where a party charged with a criminal offense against the United States is brought before a commissioner for examination, such commissioner should proceed without unreasonable delay to the investigation of the matter charged. He has no authority to take bail for the appearance of the accused for examination before him at a future day unless a justice of the peace would have such power under the laws of the state, and a recognizance for appearance at a subsequent day taken without such authority is absolutely void. United States v. Case, 8 Blatch., 250.

§ 23. Where, in an examination proceeding before a United States commissioner, the evi

§§ 24-27.

UNITED STATES COMMISSIONERS- UNKNOWN HEIRS.

dence against the accused consists of an indictment found against him in another district, quære, whether the indictment can be examined and its sufficiency passed upon by the commissioner. In re Clark, 2 Ben., 540.

§ 24. Section 1014, Revised Statutes United States, in conferring criminal jurisdiction upon United States commissioners appointed by the circuit court, declares that proceedings before them shall be agreeably "to the usual mode of process " in the state where they are appointed. From this it may be inferred that it was the intention of congress to assimilate all proceedings for holding persons accused of crime to answer before a court of the United States to the proceedings had for similar purposes by the laws of the state where such court is held. United States v. Harden, 10 Fed. R., 802; 4 Hughes, 455.

§ 25. Contempt.- It seems that congress has no power to invest a commissioner with the authority, in a proceeding originally instituted before him, to summarily commit a citizen for an alleged contempt, such being an exercise of the judicial power of the United States, which, under the constitution, could not be intrusted to officers appointed and holding office in the manner in which commissioners are appointed and hold their offices. Ex parte Doll,* 7 Phil. (Pa.), 595.

§ 26. Error in proceedings.—The relation of the court to the commissioner is not that of an appellate tribunal. It exercises an independent and original jurisdiction, and it does not follow by any legal rule that an error on the part of the commissioner in the reception of evidence should work a discharge of the prisoner. In re Macdonnell,* 18 Int. Rev. Rec., 11. § 27. Extradition cases.— The jurisdiction of a United States commissioner is complete in a case of extradition brought before him under the terms of a treaty and statute. It is his duty to hear the evidence of criminality and judge of the sufficiency thereof; and no other judicial officer has power to review his action thereon. In re Vandervelpen, 14 Blatch., 137; In re Wiegand, 14 id., 370.

UNITED STATES CONSTITUTION.

See CONSTITUTION AND LAWS.

UNITED STATES CONVICTS.

See CRIMES.

UNITED STATES COURTS.

See COURTS.

UNITED STATES MARSHAL

See FEES AND SALARIES; OFFICERS.

UNITED STATES NOTES.

See MONEY.

UNITED STATES STATUTES.

See CONSTITUTIONS AND LAWS.

UNKNOWN HEIRS.

See ESTATES OF DECEDENTS.

USAGE AND CUSTOM.

[See EVIDENCE.]

§ 1. Must be uniform and well established. What is called the custom or usage of trade is the law of that trade, and to make it at all obligatory it must be ancient, so as to be generally known, certain and reasonable. A usage of so doubtful authority as to be known only to a few, and where merchants in the trade differ as to its existence, can never be regarded. Collings v. Hope,* 3 Wash., 149.

§ 2. In order to have commercial usage take the place of general law it must be so uniformly acquiesced in, and for such a length of time, that the jury will feel themselves constrained to find that it entered into the minds of the parties and formed a part of the contract. Blakemore v. Heyman,* 6 Fed. R., 581.

§ 3. A usage to govern or control a contract between parties must be so certain, notorious and uniform as to be understood and known by them. United States v. Duval, Gilp., 356. § 4. A usage of a department of the government in settling its accounts can have no effect on those of an individual, unless it is certain, uniform and notorious. Ibid.

§ 5. Workmen and material-men are entitled to enforce their lien before the vessel is finished, and any usage to control such right must be clearly and uniformly well known and understood. Davis v. A New Brig, Gilp., 473.

§ 6. A party cannot prove a custom established by himself; only a general custom may be proved. Maury v. Talmadge, 2 McL., 157.

§ 7. A usage, to be binding, must be general as to place, and not confined to a particular bank; and in order to be obligatory must have been acquiesced in and become notorious. Adams v. Otterback, 15 How., 539.

§ 8. Evidence introduced in support of a custom of having a watch on board vessels in foreign ports at the expense of the sailors showed that the custom was sometimes observed and sometimes departed from, the express assent of the crew sometimes obtained and sometimes not. Held, insufficient to establish the custom. Chatfield v. Barque Wolga,* 3 Law Rep., 387.

§ 9. A usage to control a general principle should be very clear and uniform; otherwise it ought not to affect the rights of the parties. Trott v. Wood, 1 Gall., 443.

§ 10. A usage of trade, general, long established, and well known and understood, in the inland commerce of the Mississippi valley, will be recognized by the supreme court. Gibson v. Stevens, 8 How., 384.

§ 11. A usage, to be binding in the navy, must be uniform, and applicable to all officers of the same grade under similar circumstances. United States v. Buchanan, Crabbe, 563.

§ 12. Sale by auction is in the great marts of commerce so commonly resorted to by merchants to ascertain the value of deteriorated merchandise as to almost amount to a usage of trade. The Columbus, Abb. Adm., 37.

§ 13. A usage in respect to mercantile transactions must be shown to be notorious, uniform and of long continuance. Where an effort was made to establish a custom among pilots to charge double pilotage on vessels crippled and disabled, held, that evidence of such a practice among pilots for four years back was not sufficient to create a custom or usage in respect to the matter which would be binding upon ship-owners and masters. Love v. Hinckley, Abb. Adm., 436.

§ 14. Ordinarily words stamped on the back of a bill of lading by the master, there being no evidence of the assent of the consignee, will not be allowed to vary the established rules applicable to the delivery of goods at the place of destination and the payment of freight, and any usage or custom to give them such effect must be not only general, but of long standing. Brittan v. Barnaby, 21 How., 527.

§ 15. To establish a usage or custom, in a particular port, of ship-owners to discharge the entire consignment of goods before exacting payment of freight, and to allow the consignees to take possession and transport the same to their store for the purpose of making an examination before payment of freight, it is necessary to show more than an occasional practice of such method. The Eddy, 5 Wall., 481.

g 16. Only ambiguous contracts affected by. The proper office of a custom or usage in trade is to ascertain and explain the meaning and intention of the parties to a contract, whether written or in parol, which could not be done without the aid of this extrinsic evidence. It does not go beyond this, and is used as a mode of interpretation on the theory that the parties knew of its existence and contracted with reference to it. Barnard v. Kellogg, 10 Wall., 383.

§ 17. Evidence of a general usage as to compensation of insurance agents is inadmissible