(after stating the case). No statutory provision of the United States brought to our attention, or of which we have knowledge, gives or secures to Deputy Marshals any claim against the Government for, or any interest in, fees or compensation earned by them as such deputies. Neither fees nor compensation are prescribed by statute for them, nor are they recognized or treated as entitled to the same, as of legal right, or as creditors of the Government. The fees they earn are, certainly, ordinarily for, and belong to, the Marshal. In the nature of their employment and duties, they act in his name and place, and the fees they earn are due to him and are charged in his name. They are little more than his agents or servants, invested with some measure of his authority conferred by law, and they are recognized by the law only to determine their rights and liabilities, and the rights and liabilities and duties of third parties arising out of what they do or fail to do as deputies. Their claims for compensation are against the Marshal, accordingly as he and they agree upon the measure of it, and how and when it shall become due and payable. No *24doubt, he may allow to them and they may agree to accept the fees they earn in his name and for him, or a part of them, as compensation, to be paid to them when such fees shall be allowed to him by the proper auditing authorities of the Government, and he shall be paid the same under existing laws, or he may pay them fixed salaries. The matter of their compensation is between them and the Marshal, not between them and the Government.
The statute (Rev. Stat. U. S., secs. 780, 784, 829, 830, 833, 834, 841, 844, 846) prescribes the fees and compensation the Marshal may have — -the maximum he may take — how he shall account with the Government — that he shall give bond and be liable for breaches of the condition thereof; but no fees or compensation are prescribed for his deputies, nor is their liability prescribed — the Marshal is liable for their misfeasance and non-feasance within the sphere of his office. Section eight hundred and thirty-three requires the Marshal, in. making his semi-annual report to the Attorney General of the fees and emoluments of his office, to “ state separately therein the fees and emoluments received or payable for services rendered by himself personally, those received or payable for services rendered by each of his deputies, naming him, and the proportion of such fees and emoluments which, by the terms of his service, each deputy is to receive.” And there is a provision in section eight hundred and forty-one cited, restriciing allowances on account of deputies. The purpose of these requirements and provisions is not to give deputies any claim against the Government, but to facilitate the adjustment and settlement of the accounts of the Marshal, and to prevent him from receiving more than the maximum of compensation allowed him by law. There, are ■numerous other statutory provisions, all ¡jointing, more or less .directly, to the right of the Marshal to have claims against the Government for fees and emoluments earned by *25him for services rendered by himself and his deputies in a variety of ways, but none that give deputies such right.
The deputies of the defendant named in the pleadings, as to their claims in question, did not, therefore, have any claims against the United States for fees and emoluments, or otherwise, as implied by the fifteenth exception of the defendant, but their claims were against him, for such part of the fees earned by them, respectively, as he agreed with each he should have, to be paid by him when the Government should allow and pay his claims against it. The deputies each assigned his claim, or part of it, whether by draft or otherwise, against the defendant, and not his claim against the Government, and hence the statute (Rev. Stats. U. S., § 3477), making absolutely void “ all transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional,” &c., unless made in the way prescribed, has no pertinency or application here, and does not affect the rights of the plaintiffs. And for the like reason, Frist v. Child, 21 Wall. 441; United States v. Gillis, 95 U. S., 407 ; Spofford v. Kirk, 97 U. S., 484, cited and relied upon by the defendant, are not applicable. The Court, therefore, properly overruled the fifteenth exception of the defendant.
We are of opinion that the defendant’s first exception should have been sustained. The referee was expressly directed by the Court to “pass upon and report whether he allows or overrules the exceptions to the evidence (that heard by him) made by either plaintiffs or defendant,” the purpose being, to afford opportunity to the Court to decide upon the competency of evidence objected to, upon proper exception to the ruling of the referee. The latter failed to pass upon the evidence objected to in question; nor did the Court. That it did not is assigned as error.
It might be said that the referee, and after him the Court, did, by implication, decide that the evidence was competent *26and unobjectionable, and possibly this is so; but the defendant was deprived of opportunity to assign error in that respect, and if there was error, we cannot correct it in the absence of exception or error assigned. The gist of the exception is, that the defendant did not have opportunity to assign error in the respect mentioned. - This seems to us to have force and merit.
The counsel of the plaintiffs insisted, on the argument, that the objection embraced by the exception “ does not go to the merits of the controversy,” and, therefore, in view of the order of the Court, the exception should not be sustained. We cannot accept this argument as a valid one. The evidence objected to, if competent, was very important indeed; it went directly and strongly to prove that the accounts of the defendant, as to fees earned by his deputies named in the pleadings, had been allowed as to each by the Government, and he had received the money on account thereof, as to each, to an amount greater than each had assigned to the plaintiffs, which they seek to recover in this action. The defendant seriously contends that the certified copies of accounts audited and settled, objected to, are not evidence against him in this action, and the objection may be well founded. We do not decide now that it is or is not. The Court below should have decided-upon the objections to the evidence, so that the complaining party might have had opportunity to assign error and appeal to this. Court.
The first exception must be sustained, and the Court, without a re-reference, will decide upon the questions of law raised by the defendant’s objections to the evidence referred to in it, and give judgment upon the report of the referee, if this may properly be done, or, for sufficient cause, it may set aside the report and direct the account to be retaken, and proceed in the action according to law.
All the other exceptions of the defendant were properly overruled, except in so far as the matters of them may be *27affected by the decisions of the Court in respect to the evidence referred to in the first exception.
Error. New trial.