Page:Federal Reporter, 1st Series, Volume 10.djvu/388

 376 FEDERAL BSPOBTEB. �necessary assistance, and he can keep such assistance as long as the responsibility continues, and he is entitled to the fees allowed bylaw for such important and responsible service. The rule of this court, which requires the commissioner to determine the question whether a guard is necessary for the marshal when a prisoner is before the court under arrest, must be set aside, as it is contrary to law, The marshal alone can determine this question, and say how far he is willing to subject himself to the chances and responsibilities of an escape. The marshal cannot be relieved by any action of the com- missioner, as he has no power to commit a prisoner brought before him for examination until a cause of commitment judicially appears. When any commitment is ordered, a written mittimus, setting forth the cause, must be directed to the marshal or his deputy, command- ing him to deliver the prisoner to the keeper of the common jail, and when the mandate of the warrant is obeyed then the marshal is relieved from the responsibility of custody. Raniolph v. Donaldson, 9 Cranch, 78. �The marshal is clearly entitled to the fees charged for attending court and guarding the defendant on the twenty-seventh of August, as the defendant was put in his custody by order of the commissioner until sufficient bail was given for an appearance at court to answer an indictment. After hearing a case and determining to hold a defendant to bail, the commissioner can by verbal order put the defendant in custody of an officer until the bail required is given, but the ofScer cannot commit to jail without a written 7nittimus from the commissioner. �It is ordered that the clerk of this court retax the costs iu this case in conformity with this opinion. ��� �