Page:Federal Reporter, 1st Series, Volume 10.djvu/385

 UNITED STATES V. EBBS. 373 �no authority to direct a marshal not to execute a warrant issued by a commissioner. U. S. T. Scroggins, 3 Woods, 529. He may appear before the commisBioner and attend to the presentation of the evi- dence, but he is only counsel for the government. He cannot direct the commissioner in his judgment, or as to what course he shall pursue, or dismiss the proceedings. U. S. v. Schumann, 2 Abb. (U. S.) 523. �I am inclined to doubt the power of a federal judge, by writ of prohibition or otherwise, to control the discretion of a commissioner in the hearing of a cause before his order of commitment. The decision of a commissioner may in some things be reviewed upon writs of haheas corpus and certiorari, and rules of court may be adopted regu- lating the practice and modes of procedure in such inferior courts. As an examining and committing magistrate a commissioner bas similar powers to those of a justice of the peace, in the state where he acts, and his proceedings must be agreeable "to the usual mode of process against offenders in such states." In this state a justice of the peace is authorized and directed to hear the witnesses of the defendant, and allow him reasonable time to employ counsel in his defence, and determine the matter after hearing evidence and argu- ment on both sides of the case. The justice being vested with such powers and duties of investigation, hemust necessarily have the inci- dental powers of continuing the matter to a future day, to enable parties to have a fair and full investigation, and also allowing a defendant bail in bailable cases, during such continuance of the cause. This course of procedure was adopted by the justice of the peace in Queen's Case, 66 N. G. 615; and the supreme court seemed to regard such course as regular and proper. �As the commissioner in this case adopted a similar course 'n ac- cepting the appearance-bond of the defendant, he could not by a mere verbal order revive a superseded warrant, and legally direct an arrcst of a person on bail, which had been accepted, before an exam- ination of the merits of the case. I think that the deputy marshal made the charge with an honest belief that he was entitled to such fee for service of the warrant, and the commissioner is not blamable for approving the same, as required by the rules of court. �The second exception presented by the defendant is not f ully sus- tained by the evidence. It appears that the warrant was issued on the sixteenth day of May, and that the defendant knew it was in the hands of the deputy marshal, and he used all the means in his power to evade an arrest. His brother, I. N. Ebbs, wrote to the deputy ��� �