FEDERAL REPORTI!:R,: vol.
39.
erative by rEmson of anon-compliance witli! thestatutory·requirements. This question has been settled iii Massachusetts in the case of Deerfield v. A1"'1n8, 20 Pick. 480, where it was held thatlio actilnl at common law could be maintained upon a statutory submission which:was ineffectual undetthe statute. The grc\ul1d of the decision in that case was that an agreement for submission at common law was different from an agreement for submission under the statute, and that you cannot substitute one for the other without changing the contract which was entered into by the parties. The reasoning of the court in Deerfield v. Arms seems to me to be sound, and Lthink that decisi,on should be followed by this court. See, also, Sargent v. lIamliden, 3'2 Me. 78. Under the agreement of submission in the present cas() the arbitrators awarded that this defendant pay the costs and expenses of the submission, but, the award having been rejected by the supreme court of Massachusetts, I do not see how under the law any part of the award can be enforced in this court in any form of action. It follows thflt judgment should be entered for the defendant, and it is so ordered. Judgment for defendant.
JO.';ES
v.
UNITED STATES.
(District COU1'!, S. D. Aiftbama.
August 7, 1889.)
1.
CLERK
The clerk of the tTnited StlHes di,o;trict COl1l't is entitled to fees from the government for tiling separatfjly, in criminal cases, the process or copy of process, the bail-bond, and the rccoguizauce of witnesses sent up by the commissioner. OF SUBPrENAS.
PAPEHS IN CnUUNAI, CASES.
2.
The clerk may issue separate snbpoonas for witnesses in criminal cases when. necessary to secure their immediate attendan.ce. SAME-ACTION .FOIt FEES-SET-OFF-BuHIlEN 01' PROOF.
:8. 4,'
In a snit by an qfficer for fees nnder the act. of March 8,' 1887, (2·1 St. at Large. 505,) when the United 'States pleads any affirmative matter such as set-off the . bnrden is on them to prove it, lIud not ou the petitioner to disprove it. SAME-ApPROVAL OF OFFrCEHs' ACCOUNTS-FEES.
All pro<;eeding-s.c6nuected with the approvnlof officers': acconnts against the government, under, the act of Febrnary:.l2. 1875, (18 St. at Large, 333,) are for the convenience and at the expense of the United States, and inclnde the certified copy df order of approval indorsed on the original account sent to the treasury depariment as well as the original order entered on the minutes_ But there is no law or regulation for indorsing a certified copy of the order on the duplicate account retained in the clerk's office.
5·. SA1IE -COPIES OF ORDERS TO MARSHAL. Copies of orders to marShals to pay witnesses, jurors, special deputies, or supervisors, to be nsed as vouchers in his acconnts, are at the expense of the I:: ,United States, b.nt seals .snch orders are unnecessary, 6; SAME.-FrLING VOUCHERS. ' The clerk is entitled to fees from the United States for filing each separate voncher covered by the marshal's account with the government.
, JONES fl., UNlTlllP'STATES.
411
7.,
SAME-FINAL RECORD.
The final record to be made by the clerk of all the proceedings of court em· braces'thefitJ8.l commitment by the court in a criminal case, but does not the prelirninar,ybail-bond and justification of sureties taken before the commis· sioner, li.sthese are proceedings of the magistrate and not of the court. In scire!aifio,s on a forfeited appearance bond in a criminal case a separate notice must issue,to each obligor. This is in the nature of a writ, and to be paid for by United States. , The clerk is not entitled'to charge the United States for making for his of· fice files copies of reports required by department regulations to ,be made to the solicitor of the treasury, nor for keeping. of separate from his sUbprena record. ,. . .' ,
B.
SAME-SCIRE FACIAS ON RECOGNIZANCE-ISSUING NOTICE.
9.
SAME-OFFICE FILES.
At Law. On two petitions by clerk of court under act of 'congress 'of March 3, 1887,{24St. at Large; 505,) for fees charged against the United States in criminal cases, but disallowed by the comptroller aT the treasury The petitions were consolidated by the court. . In addition to the facts appearing in the opinion it may be noted that the subpuma charged' for as iteiD' 2 was one for a witness, who, though embraced in the prE£cipe with others in his county, happened to be at time of trial lin the city of Mobile, and was wanted instanter., The clerk issued a arate subprena for him. ' Item 4 was a balance unpaid on an 'Recount which was allowed in full. The treasury officials declined payment because they claimed the clerk had been paid as much on a former account for services never rendered. The district attorney on the trial pleaded a. set-off of this amount, but introduced no' proof in support of it. The machinery of approval of a United States official's accounts was shown to be the presenting of the accounts and vouchers in duplicate to the and the making of an order of approval, entered on the minutes, and certified copies indorsed on the original and duplicate accounts. The original account and vouchers are then forwarded to the treasury department for allowance and payment, while the duplicate account and vouchers are filed in the clerk's office for preservation. Items 5 to 16, 18 to 23, 25 to 28, 29 to 48, and 49 relate to different parts of this pro<ledure. A regulation of the treasury department requires the clerk to report new cases in which the United States are interested, and also their final disposition. The clerk was allowed fees for these reports, but was disallowed for copies of these reports made for preservation in his office. Item 57 was a book kept by him showing in separate columns for each case the different items on which are based the certificates issued to witnesses. This was highly commended by an examiner of the department of justice, but payment refused by the treasury officials. lIamiltons & Gaillard, for petitioner. M. D. Wickersham, U. S. Dist. Atty. TOULMIN, J. The plaintiff sues to recover certain fees claimed to be due him as clerk of said court, and which are specifically set forth in the accounts annexed to the petition filed in'the cause. It is not denied that the services charged for were performed, but compensation for them has been disallowed, either on the ground that the same is not payable
FEDEUALREP01tTER;
vol. 39.
by toe United .States, or that. the services, were not· necessary or required. Itend. My opinion is, that 'the plaintiff is entitled tofees for filing at least three :pa pers from commissioners, viz., the processor copy of process, the bail-hond, and the 'rectlgnizance of witnesses. These papers are required by law to ,be returned to.the clerk of the court, and when they come'to his office, in contemplation of section 1014 of the Revised Statutes of the United States, and of sections 4298 and 4425, Code Ala., they should be ,filed by him for jdentification and ready reference. He charges for ,filing three separate papers in each case from commissioners, which he isaUowed. Rev;· St.§ 828. Item 2. The rule is that there should be but one subpcena issued for all the witnesses in a cause. But this rule is subject to exceptions. The proof brings this case within the exceptions, and shows that the issue of thesubpcena charged for was necessary and proper. The plaintiff is entitled to the fee charged therefor. Item 3. He is entitled to the fee for entering order overruling motion to quash indictment. He is required to enter all the orders of the court, (Rev. St. § 794,) and the statute provides a fee for such service. The proof shows that the item was for this service, and not for "entering the motion to quash," as appears from the face of the account. Item4 The proof shows that the services charged for and covered by this item were not only actually performed, but that the account, therefor had been stated and allowed by the treasury department. It became then a stated account. But the government claims that it was improperly allo1w:ed and paid, seeks to recharg:e it against the plaintiff, and now pleads a set-off to the extent of said item. This is an affirmative plea, and it devolves on the go'vernment to sustain it by proof, which it fails to do. Items 5 to ,16 inclusive. The charges for entering orders of the court approving marshal's accounts are allowed as legal and proper charges. The law requires such orders to be made, and it is the duty of the clerk to enter them up. And certified copies of such orders are required to be attached to said ap-counts, and to be forwarded to the treasury department. The clerk is entitled to his fees for entering the orders and for making certified copies of them, and these fees are justly chargeable to the But I do not think the clerk is entitled to be paid for two copies of the same order. The law requires the account to be made in duplicate, but not the order approving' the account. The original account with a ceitified copy of the order is forwarded to the treasury department, and the duplicate account is retained by the clerk and filed in his ofIice. Only one copy of the order, then, is necessary. Item 17. What is saiel as to the charges for copies of orders approving the marshal's accounts is applicable to the charges made for copies of orders for trlatshalt6 paysilpervisors of election and special deputies. Seals to copies of orders forn'larshal tbpay' supervisors, special deputies, and witnesses 'are, in my opinion,not neeiessary, and the charges therefor not allowable, unless they are reqnired by some regulation of the department of which I am not advised.
JONES V. UNITED STAm;
413
to 23, and 25 to 28, i:nclusive"anditerii 49. These are charges for' filing the ,marshal's accounts and vc>ucli'ers. The law requires this service of the clerk presumably for the cortveniel'lCe and protection of the government. lIe is entitled to his fees fodt,and they are clearly chargethe government. Each should be filed separately for easy identification and ready reference. Items 24 and 56. Charges for making final record. It is the duty of the clerk to record, after the determination of any prosecution, all the proceedihgs of the court relating thereto. It seems to me olear that an order of commitment made by the court is an important part ofthe ceedings in a criminal cause, and that it should be made a matter of record. But I tbink it. equally clear that a justification of sureties on a bail-bond taken by the committing magistrate is no part of the proceedings of the court, and that its entry on the record is unauthorized and tmIiecessary. And. the same may be said as to the bond itself. The charge for the two items last mentioned is not allowed. Items 29 to 48 inclusive. These are charges for entering orders approving man,hal's, commissioner's, and district attorney's accounts. vVhat has already been said as to items 5 to 16 inclusive applies to these items. Item 52. Charges for scire facias. They are legal and proper, and are allowed. Whenever an undertaking of bail is forfeited by the failure of the defendant to appear, as required, a conditional judgment must be rendered in favor of the United States against the parties to the undertaking for the sum therein expressed, and a notice of the rendition of such judgment must be issued by the clerk to each defendant. ' This notice is called scire facias, and is in the nature of a writ. Code Ala. §§ 4434, 4869. The clerk is entitled to a fee for each writ issued by him. Rev. St. § 828. The proceeding by scire facias is a civil action, and the notices issued in it are original. These must be executed by the marshal, and should be returned by him with the proper return thereon indorsed. The usual mode of executing process of this character is by leaving a copy of it with the defendant. Items 53 and 54. What I have saiel under item 17, as to charges for copies of order for marshal to pay supervisors and special deputies, and as to the necessity for seals to such copies, applies to the charges for copies of order to pay witnesses and jurors, and seals thereto. Item 55. The charges for making Juplicate report to the solicitor of the treasury is not required by law, or the regulations oHhe department, is unnecessary. and not allowed. Item 57. This charge for entering certificates for payment of witnesses is disallowed as not required by law, and unnecessary in the manIler and form in which the same is made. When the court causes an order to be entered for the payment of witnesses, the clerk should enter on the record the names of such witnesses, stating days attended, mileage, and amounts, etc., and for this service he is entitled to be paid for making the record. And it is the duty of the clerk to keep a' subpama record for all cases, in which mnst be entered the cases in which any subprena issues, the names of the witnesses, the time of the issue, and the'return
414
FEDERAL R,EPORTER,
i<! ' "
, WATSON.
SUT,ZERV.
(Oircuit Oourt,D, Vermont. July 1,1889.) PRACTICE IN FEDERAL COURTS.
Under Rev. St. U. S. §§ 648, 649, makinA' all issues of fact in the circuit court triable by jury except in proceedings in equity, bankruptcy, admiralty. Bnd in cases of maritime jurisdiction, an action of book-account can be tried only by a jury. though secti<;>n 914 provides that the practice in the federal colirts shall be similar to that in the 'Courts of the state in which the case is tried, and the action mentioned is triable under the state practice only by auditors.
At Law. Action of book-account. Wilder L. Burnap, for plaintiff. SamuelE. Pingree, for defendant. Before WALLACE and WHEELER,JJ. WHEELER,J. The action of book debt has always been in use in Connecticut. It has been regulated, but was not created, by statute. lerriU v. Beecher, 9 Conn. 348, note. It was brought from there to Vermont, regulated by statute, and called" book-account." Slade's Vt. State Papers, 456. Trials in it are always by auditors appointed by the court. Gen. S1. Conn. §§ 1037, 1044; R. L. Vt. §§ 1206, 1207. In practice it is nearly COllcurrent with the action of general assumpsit. Wilkina v. Ste· vens, 8 Vt. 214; Gassett v. Andover, 21 Vt. 342. It lies for services performed, even under a special contract. Myers v. Society, 38 Vt. ,614. The form of the declaration is prescribed, and runs for the recovery of money "which the plaintiff says is justly due from the defendant to bal· ance book-accounts between them." This is an action of book-account,