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the indictment was pending for the purpose of having his bail increased to $1,000; that the defendant was arrested on said warrant and was by a commissioner admitted to bail in the increased amount, and that the discharge in question was that after trial by the court.

By section 4413 of the General Statutes of Nevada, a form of recognizance is provided in such cases. That form provides that the defendant

"Shall appear in that or any other court in which his appearance may be lawfully required upon that [information, presentment, indictment, or appeal, as the case may be], and shall at all times render himself amenable to its orders and processes, and appear for judgment, and surrender himself in execution thereof."

It is manifest that under such a recognizance a defendant would not again come into custody of the marshal unless he were convicted; and as it appears that the defendant in this case was acquitted, he never came into the legal custody of the marshal so as to authorize that officer to charge a fee for discharging him.

This case is substantially similar to that of Puleston (ante, p. 550), the only difference being that in the present case the discharge for which a fee was claimed by the marshal was after trial by the court, and not after a final hearing by a commissioner.

Under such a form of bond as is prescribed by the Nevada statutes, no distinction in principle can be drawn between a trial in court and a hearing before a commissioner. The action of the Auditor is therefore affirmed.

R. B. BOWLER,
Comptroller.

IN RE ACCOUNT OF HARRY ALVAN HALL, UNITED STATES ATTORNEY FOR THE WESTERN DISTRICT OF PENNSYLVANIA.

Under the act of March 3, 1887, limiting the per diems of officers of the courts, a United States attorney is not entitled to a per diem fee for appearing before the judge at chambers.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

June 15, 1896.

Mr. Harry Alvan Hall, United States attorney for the western district of Pennsylvania, in his account for the quarter

ending September 30, 1895, claimed certain per diem fees and mileage to attend court. In that account he made this statement:

"The per diems charged for July 11 and 12 and August 21 are for attendance at court in chambers and perhaps should not be allowed; if not the mileage charged to Pittsburg on August 21 should also be disallowed."

The account was approved by the judge in accordance with the act of February 22, 1875 (18 Stat., 333), and the certificate required by the act of March 3, 1887 (24 Stat., 541), was given by the judge in the following form:

"That upon each and every day for which a per diem is charged in the foregoing account for attendance upon the sessions of court, court was opened by the judge for the transaction of business, and business was actually transacted in said court."

There was also filed with the account a certificate from the clerks of the circuit and district courts of the district stating the days upon which those courts were opened by the judge for business and business was actually transacted. The dates named by Mr. Hall as those upon which he attended the court in chambers are not included in the certificates of the clerks as those upon which the courts were opened for business and business transacted. On the settlement of the account by the Auditor the per diem fees for those days and the mileage to Pittsburg on August 21 were allowed. Upon request for further information in regard to the business transacted on those days, Mr. Hall writes:

"The business transacted July 11 and 12 was the granting of orders of removal. On August 21 the clerk's minutes show the transaction of some admiralty business in chambers, but do not show that United States business was transacted. By reference to my diary, however, I find that that day was fixed for the argument of a motion for a new trial then pending, and I went from my home in Ridgway to Pittsburg for that purpose. Through either the severe illness or death of the wife of the opposing counsel, who was from Erie, he was unable to appear, and telegraphed requesting a continuance. I therefore appeared before the court and moved for a continuance of the argument to a later day."

A clause in the appropriation act of March 3, 1887 (24 Stat., 541), provides:

"Nor shall any part of any money appropriated be used in payment of a per diem compensation to any attorney, clerk, or

marshal for attendance in court except for days when the court is open by the judge for business or business is actually transacted in court."

In Converse v. United States (26 C. Cls. R., 6) it was held that in order to entitle any one of the court officers named in said clause to a per diem fee the court must not only have been opened by the judge for business but business must also have actually been transacted in court, the word "or" in said clause clearly meaning "and."

In the recent case of Ackiss v. United States in the Court of Claims, in which a clerk sued for days when the court was open under section 574, Revised Statutes, and upon which entries in admiralty cases were made, it was held that the clerk was not entitled to a per diem fee. Judge Davis said:

"The word 'business' as used in the act of 1887 means judicial business; business which can only be transacted by a judge, and does not mean that which may be performed by a clerk in the judge's absence or that which may be done by a judge in vacation."

This evidently means that the business required by the act of 1887, in order to entitle a district attorney, clerk, or marshal to a per diem fee, must be business which only the court sitting in open session as a court can transact, and not business which may be done by the judge in chambers. Orders of removal under section 1014, Revised Statutes, are granted by the judge of the district court by virtue of his office and may be granted either in chambers or in open court, but whether granted in chambers or in open court the orders are not the orders of the court but of the judge thereof and therefore do not constitute business transacted in court within the meaning of the act of March 3, 1887. The transaction of admiralty business is specifically covered by the decision of the Court of Claims in the Ackiss Case, supra. Although August 21 was a day fixed for the argument of a motion for a new trial, yet such argument was not had, but was postponed until a future day. Apparently no record was made of either the setting of the case for argument on August 21 or of a continuance, and the matter evidently was simply one of informal agreement between the judge and the counsel. That this must be so is clear from the fact that the court adjourned on August 19 to meet again on August 26. Under such circumstances it can hardly be said that business was transacted in court on August 21.

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The action of the Auditor in allowing these per diem fees and the mileage in question is therefore overruled.

R. B. BOWLER,

Comptroller.

IN RE APPEAL OF JOHN C. EASTON, UNITED STATES COMMISSIONER FOR THE EASTERN DISTRICT OF TEXAS.

1. Fees for jurats to testimony will be allowed under the authority of United States v. Julian (162 U. S., 324).

2. The fee of 20 cents a folio for "taking and certifying depositions to file" includes the drawing of the certificate required by article 267 of the Texas Code of Criminal Procedure to be attached to the testimony of witnesses, and a separate fee for drawing such certificate is therefore not allowable.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

June 15, 1896.

Mr. John C. Easton, a United States commissioner for the eastern district of Texas, appeals from the settlement by the Auditor of his account for the quarter ending June 30, 1895. Among the items disallowed by the Auditor were fees for drawing jurats and certificates to testimony. By an order of court in the eastern district of Texas it is provided:

"Each witness shall be required to subscribe and swear to his testimony and the commissioner shall affix his jurat thereto. The testimony of the witnesses, when so reduced to writing, shall be attached together, and at the end thereof the commissioner shall properly certify the same as heretofore required and practiced."

The certificate herein referred to is evidently that required by article 267 of the Texas Code of Criminal Procedure, which is as follows:

"The testimony of each witness examined shall be reduced to writing by the magistrate or someone under his direction, and shall then be read over to the witness, or he may read it over himself, and such corrections shall be made in the same as the witness may direct, and he shall then sign the same by affixing thereto his name or mark. All the testimony thus taken shall be certified to by the magistrate taking the same."

It appears from the form used by Mr. Easton that these certificates contain substantially the same statements as those required by sections 863, 864, 865, 866, and 873 of the Revised

Statutes to be appended to depositions taken de bene esse. In the case of United States v. Julian (162 U. S., 324) it was held that the certificates required by those sections were included in the folio fee of 20 cents "for taking and certifying depositions to file." The testimony before a commissioner is not, strictly speaking, a deposition, but in United States v. Barber (140 U. S., 164–168, par. 7) it was held that a folio fee of 20 cents might be charged therefor as if such testimony were a deposition.

It would seem that if the certificate required by sections 863, 864, 865, 866, and 873 of the Revised Statutes can not be charged for separately, but is included in the folio fee for taking the deposition, the certificate of substantially the same character attached to all the testimony taken in a single case, as required by the rule of court in conformity with article 267 of the Texas Code, can not be charged for separately, but is also included in the fee for writing out the testimony as if such testimony were a deposition.

The fees for jurats will be allowed under the authority of United States v. Julian, supra, but in accordance with the principle of that decision the charge for certificates can not be allowed.

R. B. BOWLER,
Comptroller.

THREE MONTHS' EXTRA PAY FOR REENLISTMENT

IN THE NAVY.

The joint resolution of June 11, 1896, extended the benefits conferred by sections 1426, and 1573, Revised Statutes, to all enlisted persons now in the Navy, and authorized the passing of accounts of paymasters containing payments of three months' extra pay to all enlisted men as though they had been included in said sections. Under this resolution payment may now be made to an enlisted man who reenlisted prior to its passage and whose claim for extra pay was pending before the paymaster but not actually paid before June 11.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

June 17, 1896.

SIR: Replying to your inquiry of June 15, 1896, as to whether you will be justified in paying Albert Brown, steward to commander in chief, and H. R. Brayton, yeoman [see ante pp. 536, 563], the three months' pay upon reenlistment after an

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