by the United States, or that the services were not necessary or required. Item 1. My opinion is that the plaintiff is entitled to fees for filing at least three papers from commissioners, viz., the process or copy of process, the bail-bond, and the recognizance 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 identification and ready reference. He charges for filing three separate papers in each case from commissioners, which he is allowed. Rev. St. § 828.

Item 2. The rule is that there should be but one subpoena 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 the subpoena 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.

Item 4. 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 allowed and paid, seeks to recharge 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 government 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 accounts, 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 government. 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 certified copy of the order is forwarded to the treasury department, and the duplicate account is retained by the clerk and filed in his office. Only one copy of the order, then, is necessary.

Item 17. What is said as to the charges for copies of orders approving the marshal's accounts is applicable to the charges made for copies of orders for marshal to pay supervisors of election and special deputies. Seals to copies of orders for marshal to pay supervisors, special deputies, and witnesses are, in my opinion, not necessary, and the charges therefor not allowable, unless they are required by some regulation of the department of which I am not advised.

Items 18 to 23, and 25 to 28, inclusive, and item 49. These are charges for filing the marshal's accounts and vouchers. The law requires this service of the clerk presumably for the convenience and protection of the government. He is entitled to his fees for it, and they are clearly chargeable to the 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 proceedings of the court relating thereto. It seems to me clear that an order of commitment made by the court is an important part of the proceedings in a criminal cause, and that it should be made a matter of record. But I think 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 unnecessary. 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 marshal's, commissioner's, and district attorney's accounts. What 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 said 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 duplicate report to the solicitor of the treasury is not required by law, or the regulations of the 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 manner 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 subpœna record for all cases, in which must be entered the cases in which any subpœna issues, the names of the witnesses, the time of the issue, and the return

of the marshal. For making this record he is entitled to compensation. But I do not understand from the accounts sued on, and from the proof submitted, that the charge made is for making either of the records referred to. As bearing on many of the questions raised in this case, and as sustaining my conclusions on them, I cite the following cases: rich v. U. S., 35 Fed. Rep. 193; Stanton v. U. S., 37 Fed. Rep. 252; Erwin v. U. S., Id. 470.

FINDING OF FACTS.

Good

(1) That the plaintiff is the clerk of the United States district court for the Southern district of Alabama, and was such clerk on and before July 1, 1887; and (2) that he as such clerk actually performed the services charged for in the accounts sued on as therein stated.

CONCLUSION OF LAW.

That the plaintiff is entitled to have and recover from the United States the sum of $292.35, as due him on said accounts.

SULZER v. WATSON.

(Circuit Court, D. Vermont. July 1, 1889.)

PRACTICE IN FEDERAL COURTS.

Under Rev. St. U. S. §§ 648, 649, making all issues of fact in the circuit court triable by jury except in proceedings in equity, bankruptcy, admiralty. and in cases of maritime jurisdiction, an action of book-account can be tried only by a jury, though section 914 provides that the practice in the federal courts 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.
Samuel E. 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. Terrill 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. St. Conn. §§ 1037, 1044; R. L. Vt. §§ 1206, 1207. In practice it is nearly concurrent with the action of general assumpsit. Wilkins v. Stevens, 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 balance book-accounts between them." This is an action of book-account,

brought in accordance with this mode of procedure, in this court, under the provisions of section 914, Rev. St. U. S., assimilating the forms and modes of procedure in the circuit and district courts of the United States to those existing in like causes in the courts of this state.

The plaintiff moves to proceed to the appointment of an auditor according to the usual mode in that action, to which the defendant objects. By the laws of the United States the trial of issues of fact in the circuit courts is to be by jury in all cases except those of equity, and of admiralty and maritime jurisdiction, in proceedings in bankruptcy, and where the parties, by written stipulation, waive a trial by jury. Rev. St. U. S. §§ 648, 649; Parsons v. Bedford, 3 Pet. 433; Kearney v. Case, 12 Wall. 275. This is not one of either of these excepted cases. It is an action at law, although not in any form known to the common law; and, although courts of equity have jurisdiction of some matters of account, they never have had any of matters merely in assumpsit, which may be involved in an action like this. These are called matters of account because they may be kept on books of account, and not by reason of any relation of trust between the parties out of which the transactions might arise, such as courts of equity take cognizance of. The adoption of forms and modes of procedure of the states is to supply those which the laws of the United States do not provide, and those of the state cannot take the place of those which the laws of the United States have otherwise provided. Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. Rep. 724. A trial by jury in cases like this in this court, being expressly provided for and required by the laws of the United States, no other mode of trial can be taken from the state procedure and substituted for it, without consent of the parties in the form prescribed by those laws. Parsons v. Bedford, 3 Pet. 433; Baylis v. Insurance Co., 113 U. S. 316, 5 Sup. Ct. Rep. 494. In this case there can be no trial by auditors, therefore no auditors should be appointed. Appointment of auditor denied.

HOYT et al. v. CHICAGO, M. & ST. P. Ry. Co.

(Circuit Court, N. D. Illinois. July 30, 1889.)

CONTRACTS-CONSTRUCTION.

Defendant leased certain premises to plaintiffs for a term of 10 years, on which plaintiffs agreed to erect a grain elevator in addition to one it then had and to furnish defendant with certain elevator facilities at all times during the term. Defendant agreed "that the total amount of grain received at said, elevators shall be at least 5,000,000 bushels on an average for each year during the term of this lease, and, in case it shall fall short of that amount," defendant agreed to pay plaintiffs one cent per bushel on the deficiency. Held, that defendant is liable for a deficiency in the amount of actual receipts, notwithstanding large quantities of grain were from time to time tendered to plaintiffs by defendant, and by them refused for the reason that their elevators were full. The contract is intended to cover just such contingencies.

At Law. Action on contract.

John M. Jewett and Jewett Bros., for plaintiffs.
Edwin Walker and John T. Fish, for defendant.

GRESHAM, J. On the 18th day of February, 1880, the defendant leased to the plaintiffs, for a term of 10 years from January 1, 1881, lots 1, 2, and 3, in block K, of the original plat of the town of Chicago. The plaintiffs agreed to erect on the lots during the year 1880 an elevator, with storage capacity of 700,000 bushels, which they did, and pay an annual ground-rent of $3,850, and ali taxes and assessments levied against the premises, furnish the defendant at all times during the term with storage capacity for at least 1,000,000 bushels of grain in the elevator to be erected, and in another elevator then owned by the plaintiffs, and standing on lots 1 and 2 of the same block, having storage capacity of about 350,000 bushels. The plaintiff's also agreed that if, in the ordinary course of their business, the capacity of the two elevators should enable them to do so, they would receive and store all the grain carried by the defendant to Chicago for consignment. The eighth article of the contract reads:

"In consideration of the agreement aforesaid, the said party of the first part [the defendant] agrees that the total amount of grain received at said elevators shall be at least five million bushels on an average for each year during the term of this lease, and in case it shall fall short of that amount the said party of the first part agrees to pay to the said party of the second part one cent per bushel on the amount of such deficiency, settlements to be made at the close of each year. And whenever it shall appear at the close of any year that the total of grain received during so much of the term of this lease as shall then have elapsed does not amount to an average of five million bushels for each year, the party of the first part shall pay to the party of the second part one cent per bushel for the amount of such deficiency; but, in case it shall afterwards appear that the total amount received up to that time equals or exceeds the average amount of five million bushels per annum, the amount so paid to the party of the second part shall be refunded, or so much thereof as the receipts of the year shall have exceeded five million bushels, so that the whole amount paid on account of deficiency shall be refunded should the total receipts for the entire term equal or exceed fifty million bushels in all, on an average, or five million bushels for each year."

In 1886 the plaintiffs received from the defendant and stored in the two elevators 2,826,821 bushels of grain, and in 1887 they received and stored 2,957,592 bushels, the amount received during each of the two years, less than 5,000,000 bushels, being 2,173,179 and 2,042,408 bushels respectively. During this period the entire storage capacity of the elevators was constantly occupied by grain received from the defendant's cars, and although the plaintiffs repeatedly refused to receive additional grain tendered by the defendant during the same period, their refusal was always based upon the ground that the elevators were full, and contained more than 1,000,000 bushels. The plaintiffs insist that, under the contract, the defendant owes them one cent per bushel upon the deficiency of the receipts above shown, and demand judgment for that amount. By the third article of the contract the defendant agreed that, so far as it could legally control the same, it would deliver to the plain