IN RE APPEAL OF W. E. HUMPHREY, UNITED STATES COMMISSIONER, NORTHERN OF ILLINOIS. DISTRICT A commissioner is entitled to fees for drawing affidavits of persons offering themselves as sureties on bail bonds. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, December 21, 1895. Mr. W. E. Humphrey, a United States commissioner for the northern district of Illinois, appeals from the settlement by the Auditor for the State and other Departments of his account for the quarter ending March 31, 1895. Among the disallowances made by the Auditor was the following: "Drawing justification of sureties; jurat and oath being sufficient." In answer to this the commissioner says: "I do not see how there could be an oath or jurat if the justification or schedule of surety were not drawn.” It is clear that there might be an oath to an oral statement made by the person offering himself as surety, but it is not seen how a jurat—a certificate that the statements in the writing to which it is attached were made under oath-could be made unless there were in fact a written statement to which the jurat could be attached. Fees for making these affidavits of justi fication of sureties were disallowed by the Court of Claims in Stafford v. United States (25 C. Cls. R., 280), and Faucett v. United States (26 C. Cls. R., 154), on the ground that they were part of the defendant's case. The latter of these two cases was decided February 9, 1891. On May 11, 1891, the Supreme Court held, in United States v. Barber (140 U. S., 164), that oaths of sureties and jurats to such oaths were a proper charge against the United States, the folio fee for drawing affidavits of justification not appearing to have been brought in question in that case. Mr. Justice Brown, delivering the opinion of the court, said: "It is usual and proper to require that persons offering themselves as sureties for the appearance of the accused in court shall justify to their pecuniary responsibility, and the expense of their so doing stands upon the same footing as the recognizance itself." He then proceeded to show why the expense of such services "For any crime or offense against the United States the of- The folio fees for drawing affidavits of sureties were specific- R. B. BOWLER, IN RE APPEAL OF J. E. CRONAN, UNITED STATES As a marshal is not entitled to mileage under section 829 for travel from TREASURY DEPARTMENT, Office of COMPTROLLER OF THE TREASURY, December 26, 1895. Mr. J. E. Cronan, United States marshal for the district of North Dakota, appeals from the settlement by the Auditor for the State and other Departments of his account for the six months ending December 31, 1895. Certain disallowances for travel to attend court were made by the Auditor under the following circumstances: The marshal's home was at Grafton, and he traveled to attend court at Fargo, for which he was allowed 10 cents a mile under paragraph 24 of section 829, Revised Statutes, "for traveling from his residence to the place of holding court to attend a term thereof, ten cents a mile for going only." On July 2 the court adjourned at Fargo to meet the next day at Devil's Lake. The marshal traveled from Fargo through Grand Forks to Devil's Lake to attend the session of the court at the latter point, and claimed mileage at 10 cents a mile under the above-quoted clause of section 824. The Auditor disallowed the mileage claimed for the travel between Fargo and Grand Forks as being travel made in the direction of his home for which he could not be compensated under section 829, because that section provides mileage to a marshal "for going only" to attend court. The mileage for the travel from Grand Forks to Devil's Lake was allowed because such travel was made in a direction away from his home while going to attend court. Upon the adjournment of the court at Devil's Lake it met the next day at Fargo, and the marshal claimed the mileage from Devil's Lake to Fargo through Grand Forks. The Auditor disallowed the mileage between Devil's Lake and Grand Forks and allowed the mileage from Grand Forks to Fargo for the same reasons stated above for making trip in contrary direction. As section 829 provides for the payment of mileage to a marshal for going only" to attend court he can not receive mileage for returning from the court to his home, which sections 824 and 828 allow to district attorneys and clerks, respectively. It seerns entirely clear that if when the court adjourned at Fargo it was to have met the next day at Grafton, the place of the marshal's residence, he could not have received payment of mileage for that trip, for that would not have been travel from his home to attend a term of court. For like reason it would see also clear that if after the adjournment of the court at Fargo the court was to have met at Grand Forks, a point about two-thirds of the way from Fargo to Grafton, where the marshal resided, he could not have received mileage for that travel, for that would not have been travel from his home to attend court any more than would have been the travel from Fargo, the entire distance, to Grafton, his home. For like reason it would also seem that under the circumstances which occurred, to wit, an adjournment of the court at Fargo to meet the next day at Devil's Lake, requiring travel from Fargo to Grand Forks in order to reach Devil's Lake, the travel from Fargo to Grand Forks was not travel in going from his home to attend court, and therefore that the action of the Auditor in disallowing the 11268-VOL 2-21 same was right. Had the marshal in fact returned to his home at Grafton after the adjournment of the court at Fargo and then proceeded from his home to Devil's Lake, he would not have received any mileage for the trip from Fargo to Grafton, including that portion of the trip between Fargo and Grand Forks, but he would have received mileage for the travel from his home at Grafton through Grand Forks to Devil's Lake. On the settlement made by the Auditor he has received all the mileage that could have been allowed to him if he had in fact returned to his home, except the mileage in going from Grafton to Grand Forks, and this mileage he can not receive, because under the provisions of section 7 of the act of February 22, 1875 (18 Stat., 333), he is not authorized to receive mileage for any travel "not actually and necessarily performed." It appears, however, that in the settlement by the Auditor Mr. Cronan was allowed 20 cents a mile for all the travel for which he was allowed mileage, on the theory that mileage was a fee which was doubled by the provisions of the act of July 31, 1894 (28 Stat., 204). For the reasons given in the opinion of June 17, 1895, In re account of J. E. Cronan (1 Comp. Dec., 535), this was erroneous, and he should only have been allowed 10 cents a mile. In the settlement of his account on this revision he will be recharged with the additional 10 cents wrongfully allowed to him by the Auditor. R. B. BOWLER, IN RE APPEAL OF THOMAS F. WILSON, LATE A district attorney is not entitled to docket fees under clause 3 of section 824, Revised Statutes, in cases where the grand jury failed to return an indictment; or to docket fees under clause 1, of section 824, Revised Statutes, in cases where the jury failed to agree. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, December 28, 1895. Mr. Thomas F. Wilson, late United States attorney for the district of Arizona, appeals from the settlement by the Auditor for the State and other Departments of certain supplementary accounts for various periods from April 1, 1891, to March 31, 1893, in which two classes of disallowances were made. N 1. Docket fees in cases where the grand jury failed to return an indictment. The action of the Auditor was founded on the case of United States v. Van Duzee (140 U. S., 169, par. 5, 173), where it was held that a clerk of the court was not entitled to fees for docketing, indexing, and taxing costs in nine cases sent up from the commissioner's office, in which the defendant was bound over to appear to answer an indictment by the grand jury, but where the grand jury ignored the bills and no indictment was filed. It is claimed that this decision, not being upon the fees which a district attorney is entitled to receive but upon the fees of the clerk of the court, has no application to the question now under consideration, and reliance is placed upon the case of Stanton v. United States (37 Fed. Rep., 252). The fee claimed is that provided for in clause 3 of section 824 of the Revised Statutes, "in cases at law when the cause is discontinued, $5." This fee was allowed in Stanton v. United States, supra, Judge Shipman saying: “The charge in item e [discontinuances] is properly made. In four cases before commissioners the accused were bound over to the district court, the commissioner's record with the bail bonds were sent to the court, and were docketed. The cases were then discontinued, and the discontinuance fees were not regarded by the accounting officer as payable, because no information had been filed. When the commissioner's record has been returned to and docketed in the district court, the case is in that court, and remains there until it is disposed of by affirmative action. The accused then appears, and can ask for a reduction of the bond; or the bail bond can be called or forfeited. This is in accordance with the uniform usage of the district court in this district, and is in harmony with the usage of the State courts of this State." That case, upon the recommendation of the then First Comptroller, who was not satisfied with the decision, was appealed, but no decision has been finally rendered on the appeal and the case is still pending. It will be noticed that Judge Shipman founds the right to this fee upon the fact that the commissioner's record had been returned to and docketed in the district court, and that therefore there was a case in that court which would remain there until disposed of by affirmative action. In said: United States v Van Duzee, supra, Mr. Justice Brown "The real question is, whether papers so sent up and filed can be said to constitute of themselves a 'cause' which should |