IN as saves. 25
asbommissioner, discharged certain defendants who were brought before
him for trial, when the evidence on the hearing was sufficient to authorize
him to bind them over for trial; (3) that respondent so arranged certain
cases, 10 in number, in which nearly the same witnesses were used, so
as to have trials on consecutive days, and the witnesses were allowed to
prove more mileage than they had actually traveled, and such false charges
were within the knowledge of the respondent. V
At the hearing of this rule the counsel for the prosecution confined his
argument to the last specidcation, and abandoned the other charges.
As to the abandoned charges I deem it proper to say that the prepon-
derance of evidence sustained the denials and explanations contained in -
the respondents answer, and there is no evidence that he was ever in-
toxicated while in the discharge of official duty.
There is no direct and positive evidence that respondent improperly
arranged cases for trial on consecutive days, but the counsel for the pros-
ecution pointed out someentries on the face of the process that might
give rise to a suspicion of such arrangement between the respondent and
e the acting deputy—marshal. In their affidavits they both directly deny
any such arrangement, and positively aver that the cases were promptly
heard and disposed of on the days when defendants were arrested, and
before the respondent for hearing; and that the defendants were arrested
and brought to trial as speedily as possible, under the circumstances.
When commissioners issue warrants they cannot fix any certain return-day
of process, as they cannot know the time when defendants will be arrested.
When arrested, the law requires the marshal or his deputy to carry them,
as speedily as possible, before the nearest commissioner for examination.
As the arresting officer has no general authority to commit to prison, and
his compensation for guard duty is so uncertain. and he is bound to keep
defendants safely, we may well presume that he cannot attend to more
than one case a day, when defendants are arrested at a distance from the
place of hearing. When a deputy-marshal does return two or more war-
rants on the same day, and all the cases can be conveniently heard on
that day, the commissioner ought to hear·all the cases, and he does not
properly discharge his duty if he continues cases to another day, for the
purpose of increasing his fees.
The evidence tends to show that the accounts for mileage sworn to by -
some of the witnesses were fraudulent, and the payment of such accounts
has been suspended by the court by an order directed to the marshal.
The evidence shows that there was a possibility of the witnesses having
actually traveled the distance stated in their accounts for mileage, and
they are entitled to an opportunity of showing the justness of their claims.
There is not sufficient evidence to satisfy me that the respondent had
any complicity in theprobable fraud perpetrated by the witnesses. The
usual and legal evidence upon which commissioners and clerks of court
rely in taxing fees and mileage is the oath of the witnesses, and the re-
spondent, in his answer and' affidavit, positively avers that he had no
knowledge of any false charge for mileage; that he had no personal in-
formation as to the distance to the homes of the witnesses; and he al-