The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 1,014
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250 FEDERAL REPORTER
such circumstances as constitute a clear breach of the conditions of
the bond, and this on the ground and for the reason that a legal title
and right of action in such case is by the terms of the bond vested
in the United States. Such was the case of United States v. Abeel,
174 Fed. 12, 98 C. C. A. 50, cited and relied upon by plaintiff in these
actions. Said case was an action brought by the government to recover
on the official bond of the clerk of a federal court for the benefit of
those entitled to receive the moneys coming into the hands of the
clerk under orders of the court, not as an award of fees which the
clerk was entitled to charge and collect for the performance of official
duties, but as the custodian of funds in the hands of the court, which
the clerk, under no order of court, was entitled to receive and appro-
priate to its own use either as an individual or in his official capacity
for the benefit of the government. The condition of the bond of the
clerk broken in such cases reads as follows:
"Now, if [said clerk and his deputies] shall * * * properly account for
all moneys coming into his hands as required by law," etc.
In delivering the opinion for the court, Shelby, Judge, among other
things, in United States v. Abeel, said:
"The bond sued on is payable to the United States. The legal title, there-
fore, to whatever sum is due for a breach of the bond, is in the government.
Under the ancient common law, no action whatever could be maintained on
the bond at law, except by the payee named in the bond. As modified by
statutes and decisions in most jurisdictions, others having equitable interests
are permitted to assert them at law, but they are usually required to do so
in the name of the payee. This is true, even where the payee is entirely with-
out pecuniary interest, and is the mere holder of the legal title. Therefore,
in the absence of a statute changing the rule, this action could only be brought
in the name of the government, the payee in the bond, and the only ques-
tion in this aspect of the case is whether or not it is a fatal defect to fail
to name the person or persons entitled to the fund, and to aver that the suit
is for his or their use. When we consider that the petition fully states the
facts, and shows that it would be impracticable to name all who may be en-
titled to some small portion of the fund, this objection seems technical and
wanting in merit and substance," etc.
Cases of this and the like character are the nearest approach to the
cases at bar diligent counsel for the government have been able to find
in the reported cases and place on their briefs. Are they controlling in
the cases at bar, either in point of principle or fact?
One apparent distinction may be noted. All moneys coming into the
hands of a clerk of the federal court of this country by way of com-
pensation for his official services as clerk under the law is the property
of the government and as such must be turned over to the government.
On the contrary, all the fees and compensation of a referee in bank-
ruptcy coming into his hands is his individual property. In an order
of the court requiring funds to be paid over to the clerk of the court
inheres no finding or determination by the court that the title to such
fund, or any part thereof, shall by compliance with the order pass to
the clerk. On the contrary, when an order is made by the court that
any moneys arising out of an estate being administered in bankruptcy
shall be paid to or received by a referee for services by him performed
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/1029/: accessed May 28, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.