the captain strike the cook, but heard the noise in the galley. Shortly after this the cook appealed to the mate, "Won't you protect me until we get to port?" To this the mate replied, "Get to port! You will get killed anyhow," or something like that. "Go to hell! You will get killed anyhow,' or something like that." March testified:

I

"After the shooting the cook came and called us out of the forecastle. He says: 'Come out here, boys. Lower the boat and put me ashore. The captain and mate is dead, and I am in charge of this ship.' I got out of the bed and put on my shoes in a hurry, and the cook came back a second time and says, 'Come out here, won't you? Come out here, Manuel;' and he says, 'Yes.' We went out, and went on the topgallant forecastle, and he ordered us to throw the mate overboard. The mate was lying on the forecastle head, on the left-hand side. The sails of the vessel were swinging at that time to the starboard, which left the left-hand side of the vessel clear, back to the wheel house. The cook was armed when he ordered the mate's body to be thrown overboard, and he claimed then to be in charge of the vessel. do not remember whether he caught hold of the mate's body and helped to throw it overboard, or not. The mate had a marline spike tied around his neck when the body was thrown overboard. A marline spike is a big awl used to stick through the rope in splicing it. When it is used by a man going up and down the rigging, a half hitch is taken over the point, so it won't stick in his legs, or get between the rigging going down. When it is around the man's neck, it is tied with a string, and with a half hitch on the point. He can't use it, without taking the hitch off, so as to hurt anybody with it. The top of the forecastle house, where the cook was standing when he shot the mate, is about three feet higher than the forecastle deck, where the mate was standing when he was shot. To get to where Andersen was when he was shot, the mate would have had to step up those three feet on top of the forecastle house.

** I couldn't say whether the half hitch was around the point or not.

"After the mate's body was thrown overboard, we were ordered to the cabin, to take the captain up and thrown him overboard. The cook was armed at that time. When the mate's body was thrown overboard, Andersen swore oaths at it. When he swore oaths at the body, the Spaniard asked him not to curse the body that way. We all obeyed the cook, and went aft, and found the captain's body in the after cabin. (Here the witness identified the diagram, showing the inside of the after cabin, and marked "No. 2.") The captain's body was found sitting in his chair, dead, with both arms folded in his lap. He looked as if he was alive, with his head back on one side, and a wound in the left part of his head, about an inch above the left ear. The captain was sitting in his chair, near the sofa, on the starboard side of the vessel,-the point marked on the diagram ‘A.' John Andersen ordered the captain's body to be taken up and thrown overboard. Andersen was at that time armed. assisted in throwing the body overboard. He swore at it when the body was thrown into the sea, calling it 'a mean bastard.' After the body of the captain was thrown overboard, the steward ordered us to get ready the boat. He then invited us down into the cabin to get a drink of whisky. There was about two-thirds of a bottle of whisky. He drank with us. After that was done the boat was got ready. Kerosene oil was thrown over the deck load, and the ship was set on fire. Then we made for land in the sail boat. It was about two hours, I think, after the bodies were thrown overboard, before we left the Olive Pecker. At the time these bodies were thrown overboard there was no vessel in sight which could possibly have picked them up."

He

"That morning before the captain was shot and before the mate was shot, I heard a difficulty between the cook and the captain about the captain's dog. As I was going forward from taking my dishes back from my breakfast, I heard the dog holler. I was standing on the forecastle house. I saw the dog come out, and run aft. The captain came out, and went to the galley, and asked the cook if he had been throwing water on the dog; and he said, 'No.' The captain went back, and felt the dog. Then I saw the captain go in the galley, but I did not know what he did there. This was about fifteen or twenty minutes, I think, before the captain was shot. I had been at the wheel of the Olive Pecker many times. While standing at the wheel, in the wheel house, looking forward. with the sails swinging to the right or starboard side of the vessel, you can see all the way along the left-hand side of the ship, on top the forecastle house, or a man standing on top the forecastle house. The deck load did not interfere with seeing that."

On cross-examination: "I say this man intimidated us all at the pistol's point. He ordered us to throw the mate overboard. I obeyed his orders because I wanted my life a little longer. After the captain was thrown overboard, we all went into the cabin and took a drink. I can't say that we took a drink at the pistol's point, but he made us throw the mate's body overboard. He did not tell me he would kill me if I did not, but I knew enough to know he would do it. There were four of us, altogether. I did not have a knife. I do not know whether I went ahead, or who went ahead, when we went into the cabin to take a drink. We had to throw the body of the captain overboard because the cook ordered us to do it. I took orders from the cook because he gave me to un derstand he was in charge of the ship. At the time I knew he was, because he had all the guns. It makes a big difference when he had all the arms."

Berrial testified:

"I last saw Mate Saunders alive on board that vessel on the morning of the 6th of August. 1897. when the vessel was about a hundred or a hundred and fifty miles off the Brazilian coast. On that morning I left the wheel of the vessel about 8 o'clock, being relieved by Martin Barstad, and went after my breakfast; then went to the forecastle, and to my cabin. While I was lying down. after that,-I do not know how long, I heard the captain's dog holler. Andrew March came in the forecastle, and says, The captain is having a racket with the cook;' and I says, 'What can we do? Let him racket,' says I; and it was a little while before John Lind came and knocked at the window where I was sleeping. When he finished talking to me I heard the report of four shots. I went in the forecastle, in a narrow place between the engine room and my bunk. I went a there because I thought the cook wanted to kill us, too. The engineer jumped on my bunk, and got out, too. I heard the cook sing out n the door: Come out here, boys! Come out here quick! 'Yes, sir,' says I, let me finish dressing." says: 'Come out here. I am in charge of the vessel.' I went out, and the first thing I saw was the mate lying on the top of the forecastle deck, on the left-hand side, with his face downwards. The cook says, Throw him overboard,' and then I says: 'Don't, cook. Don't throw him overboard. He's alive.' He says: "Throw him overboard. He's dead enough.' We threw him overboard, and after we threw him overboard the cook says: Now, go aft and pick the captain up.' When he threw the body overboard, he cursed at the body. Then he ordered the men aft to throw the captain overboard. All the while he was armed with pistols. We went under his orders, and into the captain's cabin. When we got in the cabin we saw the captain sitting in his chair, with both hands in

He

his lap, and his head leaning slightly to one side, and on his breast. I thought he was alive. I saw he had a bullet to go through near the left side of his head. His body was taken up and thrown overboard. When his body was thrown overboard, the cook cursed it also. After it was thrown over, he said, 'Come on boys, I will give you a drink.' We took a drink, and after we took a drink all came on deck, and I said, 'We will make the staysails and the topsails fast, and, if a squall strikes her, we can manage the other sails, and we go right into Rio de Janeiro or Babia.' I sung out to Martin Barstad, at the wheel, 'Keep her off;' and the cook says, 'No; I don't want to go to the land.' He was standing close to the rail. And he said, 'Do you want me to be hung? There is nothing to be done but destroy the vessel,' he said. Then he called me and said to me, 'You are the sensiblest man on board this vessel, and I want to speak to you.' 'All right, cook,' I says. He took me on top of the galley, and says, 'I am a murderer, and I killed these people to save my life and your lives. Now, you fellows,' he says, 'you are guilty of helping me throw the bodies overboard, and before you leave the vessel you will be as guilty as I am. You ain't got nothing to fear.' Says he, 'Many a vessel leaves port, and they don't know where they go, and there's nobody to look after us for a long, long time, and we will have time to run away.' I told him I had nothing to fear with the vessel in port. I says: 'Look here, cook, destroy the vessel! It's a terrible thing. Its worse than what you have done already. Call all hands here, and tell us what you want to do, and where you want us to sail ashore, and we will help you as much as we can; and let us go into port.' 'No, no,' he says; 'that won't do. The vessel must be burned.' He ordered a small boat to be made ready, and everything was made ready, and then he took us down into the cabin, and he says: 'I didn't kill these people to rob the vessel. I grant you all, fellows, clothes out of this large chest.' And we went in, and everybody took some clothes; and the cook says: You fellows can put on your best clothes; and he gave me a suit of clothes, and he says, 'You don't want to take anything.' So we went forward and put on our best suit of clothes and the cook had us to pour oil on the deck. The cook called us to hurry up and spread the oil on the deck. I didn't want to do this. I went to the forecastle, and the cook came and said: 'What are you doing there? Come and give your hand with this oil.' I says: 'Yes, cook. Let me finish shaving, and I go.' When I went on deck I could see that the oil was already. It had been spread over the deck. The cook then told us to lower a boat, and it was lowered: and Andrew March unhooked the tackle, and we took the boat alongside the vessel, and I jumped in, too. Provisions were then put in the boat, and, when everything was ready, Andersen called to me, 'Come up and light the fire.' 'Well,' I says, 'let me keep the lookout on the boat. It might smash against the vessel.' So he called Andrew March, and the first time he called Andrew he did not come; so he called him again, in wild words, and March went up.".

On cross-examination: "Q. After the cook here had killed the mate, didn't he tell you you might put him in irons? A. Yes, sir; he came and he says, 'Now, you fellows can put me in irons, and carry me to port, if you want.' Q. And give me to the American consul? A. No, sir; the same words I told you, sir. 'Now, you fellows,' he says, 'can put me in irons, and take me in port, if you want.' I says, 'No, no, cook; I no put you in irons,' because he looked right in my face; and I says, 'Why don't you throw your revolvers away? Q. He offered to give himself up to you, holding out his hands, and said: 'Put me in irons? A. He didn't throw his revolvers away. Q. He didn't? A. No; he didn't. Q. Did he hold out his hands to put

him in irons? A. With his revolvers, yes; and I says, 'No, no, cook; I won't put you in irons; no. no.' Q. Do you mean to say he had the revolvers in his hands when he offered you to put him in irons? A. Yes, sir."

Horsburgh was asleep in his berth, in the after cabin, when the captain was shot. What he supposed was the noise of the shooting of the captain awakened him, and then Andersen came to the companionway, and asked him to come on deck,-that he had killed the captain. He came on deck, and went aft along the starboard side, where he told the crew that the cook had killed the captain. Directly after the shots, the cook came forward, shouting: "Come out, boys. I am in charge of the vessel,"-and ordered the mate's body to be thrown overboard. The mate was lying with his face down on the port side of the forecastle head, with a marline spike hanging about his neck. After the mate's body was thrown overboard, the cook ordered them to go aft and throw the captain's body overboard. "We went down in the cabin, and found the captain in the chair; so we took him up on deck, and threw him overboard. Then, after that, he told us to go down, and he would give us a drink; so we went down in the cabin, and had a drink." After that the cook ordered them to get the boat ready with provisions, etc. The cook was armed, and witness was frightened. The burning of the vessel, and the escape in the open boat, as told by this witness corresponded with that of the others. On the cross-examination the difficulty between the captain and the cook about the captain's dog was reiterated.

Defendant, Andersen, testified in his own be

half:

"It was just after breakfast, and the dog was standing at the galley door. He used to keep himself around there all the time. The captain didn't want him to stay at the galley door, and I took some water I had left in a bucket,-some dirty water,-to throw it onto the dog, as I always used to throw some water on him, and he used to run and holler. I took the bucket, and there was a little water left at the bottom of it. He was standing right at the door, and I had been giving him his breakfast. As the dog turned the bucket slipped in my hand. I had the handle on the edge of it, and it hit him here in the leg, and he ran up on deck and made a noise. I was looking around there for some place to run into and hide, as the captain was coming down there into the galley, and I was standing in the middle of the floor of the galley, facing the galley dresser. He struck me in the side here, and that sent me right on top the red-hot stove,-on top the pots and pans. He commenced to curse me and threaten me, and everything, and I pleaded to him. I says: 'Captain. don't hurt me. Don't hurt me, captain.' He looked at the ax, and he looked up through the slide. There is a little slide in the galley. He saw John Lind standing on top there, and he looked at me. He says, 'You whore's son,' he says, 'I will have the heart out of you.' And there he left me standing. I had cut them two fingers into my knuckles. The mate came along, and it was my last hopes, in that vessel, to see, maybe, another day; I had been sleeping in the galley for a week. I didn't know whether I would live to see the next day or not, so I turned to the mate, with tears rolling down my cheeks, and I said to him, 'Mr. Saunders,' I says, 'won't you protect me until we get into port?' He turned around to me with scorn. He says, 'Go to hell,' he says, 'you will get killed anyhow.' Then I did not know what I was doing. My mind was in that condition I didn't know whether to run overboard, or to stay there and go and hide. I didn't know what to do. So I went up in the galley slide, and looked around to see if I could see any vessel. Then I made up my mind if I should see any vessel I should take a board and jump overboard. So there I was. My basket of

dishes was standing upon the dresser, all dirty, after breakfast, and I was washing them, and I saw at the time it was twenty-five minutes to ten then. I looked around, and I didn't know if I had washed my dishes at all. Of course, I was completely out of my head then, so I thought about the cabin. Now, I used to sweep that cabin every morning, and dust it, and everything, before nine o'clock. I used to have my dishes done in the galley before this time, and I had my dinner to have ready before twelve o'clock. So I started into the cabin, thinking that the captain would be on deck, and I came down in the cabin. He was sitting inside of the door in a chair like this, although bigger, and he had a bottle on this here lounge which was alongside of the stool or the chair. He glared at me, and he looked fairly black in the face with rage. He blurted out and cursed me when I came into the cabin. Well, I didn't know what to do. If I should run on deck, I would have to run overboard. That was the only way I have to see out of it. I commenced sweeping the cabin, and started into the mate's room first. I saw the mate's gun lying on the shelf, and I took that down; thinking, if worst come to worst, I will have to defend myself. So I finished the cabin, and started into the captain's room. I passed by him in that direction [indicating by gesture], and he took up that bottle like this. He says, 'You whore's son! Then he took it up like this, as if to split my head open, when I pulled my gun out and fired. The bullet struck him in the left temple. He fell into the chair, and I ran into the captain's room. Then I thought about the mate. I ran into the captain's room then, and got his two guns. He used to keep one gun in under the pillow, and one on the shelf. I ran up on deck, and I didn't know where the mate was then. I came up to John Lind, and he was at the main rigging. I says, 'Where is the mate?' He says. 'He is aloft.' I looked up there, and I think I said something of calling him down, but I don't think I did do that. The mate came down and before he came down to the piece next to the rail, he says, 'Where in the hell did you get them guns?' He says, 'And where is the captain? I never made no answer to him, but I stayed on top of that house there as the mate came down, and he had this marline spike around his neck. I will just show you how he had it, if you please. He had this hitch on this marline spike, as represented to you before. He came down like this, and walked up like this [indicating by appropriate gestures). (walking towards the bowsprit), and turned in this direction (to the right), and came towards me in that direction (on the starboard side). He took the half hitch out of the marline spike, like this, and the marline spike was hanging down when he came towards me. I was standing there and had the guns then. I had three of them, and I held them in my hand all the time. I had an apron around my waist, and I had no pockets here in the pants. He got this hitch off the marline spike, and came around to me like this indicating by proper gesture].*to take the marline spike off his neck and shove the marline spike into me. I pulled the gun and shot him. The first shot struck him here somewhere (in the side). He was still coming towards me, and I shot twice or three times together, when the man fell dead. In the meantime John Lind has been running into the lee side of the house. Now, he stated here yesterday to you gentlemen that I came up to him and says, 'Now the mate will go, too.' But that belongs on the lee side of the house; to that man. When he came there he told them, 'Now the mate will go, too.'

"Q. You mean by that that you didn't say it at all?

"A. No, sir; that belongs to John Lind, and into the lee side of the forecastle. That is where that belongs. So I stood there, and

John Lind- He was the man that came up first, and there was nobody else came up.

So

I says, 'Men,' I says, 'ain't you coming up? I says. In the condition I felt, I felt actually frightened of the men, the way I was, because I was completely gone. We throwed the mate overboard. I helped them, also, so far as I can remember. And we took the captain out of the cabin and threw him overboard. And now, when this was done, I told them, I says, Now men,' I says, 'you can do as you like with me,' I says; 'you can put me in irons, and take me into port, and give me up. You see I had to defend my own life.' 'Yes,' they says, 'we all know that.' There I was, broke down completely, like a child; and here they are, coming up here yesterday to put everything onto me."

He also gave an account of the burning of the vessel and trip to the shore. On cross-examination he admitted that he was about three feet from the mate when he shot him; that he was standing on the forecastle house, and the mate was down on the forecastle head; that th mate asked him not to shoot. As soon as he had killed the captain, what came into his head then was the mate; that he got the captain's pistols; that he ran up on deck through the pilot house, where Barstad was, and to Lind, who stood amidships, and asked where the mate was; that Lind told him the mate was aloft; that he got on top of the forecastle house, and, in the excitement, may have called him down. He denied having asked the men to throw the mate's body overboard, but admitted that he asked them to throw the captain's body overboard. He denied asking the crew to take a drink, but admitted that he may have got the whisky. He denied ordering the vessel to be burned, and said that it was the engineer's suggestion. He admitted that he took the captain's watch and sold it, and that the compass was thrown overboard before they reached the beach.

(170 U. S. 522)

UNITED STATES v. WINSTON.
(May 9, 1898.)
No. 205.

UNITED STATES ATTORNEYS-SERVICES IN CIRCUIT
COURT OF APPEALS-COMPENSATION-Cer.
TIFICATE OF ATTORNEY GENERAL.

1. A district attorney is not required to represent the government in the circuit court of appeals, which is not a court of the district, and, when designated to do so by the attorney general in a particular case, acts as special counsel, and is entitled to payment therefor, without regard to the amount of his compensation as an officer. 19 C. C. A. 419, 73 Fed. 149, affirmed.

2. The certificate of the attorney general, required by Rev. St. § 365, is a prerequisite to the recovery of extra compensation by a district attorney; but, though the record on appeal does not show that such a certificate was given, its existence will be presumed when it appears that the claim was allowed by the attorney general, and there is no suggestion in the assignments of error that the certificate was lacking or deficient.

In Error to the United States Circuit Court of Appeals for the Ninth Circuit.

The defendant in error, who had been the district attorney of the United States for the district of Washington from February 19, 1890, to May 30, 1893, brought this action in the circuit court to recover for special services as an attorney rendered during that period, and there recovered a judgment. The court of appeals for the Ninth circuit

struck out one claim which had been allowed, but otherwise affirmed the judgment. 44 U. S. App. 401, 19 C. C. A. 419, and 73 Fed. 149. Whereupon the United States sued out this writ of error.

The government concedes that some of the items included in the judgment of the court of appeals are correct, and disputes only three. With respect to one of these disputed items the circuit court made the following finding of fact:

"(4) That during said term of office, to wit, about the month of April, 1892, plaintiff, at the request of the defendant, appeared in the circuit court of appeals, Ninth judicial circuit, at San Francisco, in a case wherein the defendant was appellee, and the owner of the steam tug Pilot was appellant, and, as such attorney, conducted the trial of said cause, to its conclusion, for the defendant. That the attorney general of the United States allowed plaintiff for services in said cause the sum of $400, the law providing no specific compensation, and that said services were reasonably worth said sum. Of this sum, defendant paid plaintiff $212.79, retaining the balance of $187.21 on account of excess of earnings above the maximum of personal compensation and emoluments which the law permitted the plaintiff to receive for the year in which these services were rendered and the money earned."

The other items are substantially similar, and it is therefore unnecessary to state the particular facts as to them.

Asst. Atty. Gen. Pradt, for the United States. Patrick Henry Winston, pro se.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

Is a district attorney entitled to extra compensation for services rendered, under the direction of the attorney general, in the conduct of a government case in the court of appeals? Section 767, Rev. St., provides that "there shall be appointed in each district, except in the Middle district of Alabama and the Northern district of Georgia and the Western district of South Carolina, a person learned in the law to act as attorney of the United States in such district.

* *

Section 771 is: "It shall be the duty of every district attorney to prosecute in his district all delinquents for crimes and offenses cognizable under the authority of the United States, and all civil actions in which the United States are concerned, and, unless otherwise instructed by the secretary of the treasury, to appear in behalf of the defendants in all suits or proceedings pending in his district against collectors or other of ficers of the revenue for any act done by them, or for the recovery of any money exacted by or paid to such officers and by them paid into the treasury."

These two sections define the place, char

acter, and extent of his duties. He is the district attorney of the United States in the district. So far as locality is concerned, the boundaries of the district are the limits of duty. Within these boundaries, he is to discharge all his official duties. Beyond them he is not called to go. Sections 773, 774, and 775 prescribe some details in respect to the duties enjoined by section 771, but do not add to their scope.

The suit in the court of appeals in which the plaintiff rendered services was not one then pending in his district. The sessions of that court were held in San Francisco, in the Northern district of California. But, wherever held, the court of appeals is not a court in or for any district. The act creating that court (25 Stat. 517) does not creat a court in or for a district, but one in and for each circuit. The relations of that court to a district are similar to those of this court. The supreme court is not a court in or of or for a district, but in and of and for the United States as a whole. The fact that this case was originally pending in the circuit or district court of the district of Washington does not make the court of appeals a court of that district, when engaged in hearing the case on appeal. The case, when it reached the court of appeals, passed out of the courts of the district, just as fully as if appealed to this court. In other words, when a case is transferred to the court of appeals or to this court, it passes beyond the limits within which a district attorney has jurisdiction and exercises his powers.

When a case in which the government is interested comes to this court from any lower court, it falls, by the terms of the statute, within the special care of the attorney general. Section 359, Rev. St., provides:

"Except when the attorney-general in particular cases otherwise directs, the attorneygeneral and solicitor-general shall conduct and argue suits and writs of error and appeals in the supreme court and suits in the court of claims in which the United States is interested, and the attorney-general may, whenever he deems it for the interest of the United States, either in person conduct and argue any case in any court of the United States in which the United States is interested, or may direct the solicitor-general or any officer of the department of justice to do so."

Under this section the attorney general may, in his discretion, make other arrangements for the management of such a case; but this discretion does not abridge the fact that the full responsibility and control are imposed directly upon him, as the head of the department of justice. In the act creating the court of appeals there is no special direction to any attorney to represent the government. Clerks and marshals were provided for, but the act is silent as to who shall represent the government as its coun

*524

526

sel. Undoubtedly, however, the matter falls within the general jurisdiction of the department of justice; and the attorney general, by virtue of section 359 or sections 362 and 363, may either himself assume the management of all government cases, or direct what officer shall have the control and management, or, if he deems it essential, employ special counsel. Whenever the attorney general calls upon a district attorney to appear for the government in a case pending in the court of appeals, he is not directing him in the discharge of his official duties as district attorney, but is employing him as special counsel. The duties so performed are not performed by him as district attorney, but by virtue of the special designation and employment by the attorney general; and the compensation which he may receive is not a part of his compensation as district attorney, or limited by the maximum prescribed therefor. It seems to us that this is the clear import of the statutes, and we have no difficulty in agreeing with the court of appeals in its opinion upon this question.

A more difficult matter is presented by these facts. Section 365, Rev. St., provides:

"No compensation shall hereafter be allowed to any person, besides the respective district attorneys and assistant district attorneys, for services as an attorney or counselor to the United States, or to any branch or department of the government thereof, except in cases specially authorized by law, and then only on the certificate of the attorney-general that such services were actually rendered, and that the same could not be performed by the attorney-general or solicitorgeneral, or the officers of the department of justice, or by the district attorneys."

We held in U. S. v. Crosthwaite, 168 U. S. 375, 18 Sup. Ct. 107, that this section is controlling, and that "the certificate of the attorney general prescribed therein, which even that officer cannot dispense with, is a prerequisite to the allowance of compensation." There is in this record no finding that this particular certificate was ever made; nor, on the other hand, is there anything to suggest that it was not made. It does appear affirmatively that the attorney general | allowed plaintiff for his services, the law providing no specific compensation, and that the services were reasonably worth the sum so allowed. We find no reference anywhere in the pleadings, the findings, or the opinion of the circuit court, or in that of the court of appeals, to the particular terms of the certificate called for by this section. The language of its findings and opinion seems, however, to indicate that the circuit court found that proper certificates were given, and that everything necessary to entitle plaintiff to extra compensation had been performed, providing the case was one in which he could receive such compensation, and in which the services rendered were not

included within his duties as district attorney. We are strengthened in this conclusion by the fact that neither in the assignments of error made when the case was taken to the court of appeals, nor in those filed when the case was brought here, is there a suggestion that any certificate was lacking or deficient. It seems to us, therefore, that when it is expressly found that the attorney general allowed this claim, and no showing is made of the particular form in which the allowance was made, or certificate given, and no assignment of error raises a question as to the sufficiency of any certificate, we have a right to assume that the allowance was made in such a way as to secure to the plaintiff the compensation to which he was entitled. And so, although we adhere to the rule laid down in U. S. v. Crosthwaite, supra, and do not intend to qualify it in the least, we think a*fair conclusion from this record is that the proper certificate was given.

The judgment of the court of appeals will therefore be affirmed.

(170 U. S. 527)

UNITED STATES v. HERRON.
(May 9, 1898.)
No. 272.

UNITED STATES ATTORNEYS-EXTRA COMPENSA-
TION-CERTIFICATE OF ATTORNEY GENERAL

The giving by the attorney general of the certificate required by Rev. St. § 365, is a prerequisite to the recovery of extra compensation by a district attorney for services rendered in the circuit court of appeals, outside his district. U. S. v. Crosthwaite, 18 Sup. Ct. 107, 168 U. S. 375, followed.

Appeal from the Court of Claims.

Asst. Atty. Gen. Pradt, for the United States. F. P. Dewees, W. W. Dudley, and L. T. Michener, for appellee.

Mr. Justice BREWER delivered the opinion of the court.

This case, like the preceding (18 Sup. Ct. 701), is one for the recovery by a district attorney for services rendered in a court of appeals outside the limits of his district. But in this record there is a distinct finding by the court of claims that the certificate required by section 365, Rev. St., was not given. We are constrained, therefore, under U. S. v. Crosthwaite, 168 U. S. 375, 18 Sup. Ct. 107, to hold that the judgment cannot be sustained.

The order will be that the judgment be reversed, and the case remanded to the court of claims for further proceedings.

(170 U. S. 527)

UNITED STATES v. GARTER.

(May 9, 1898.) No. 274.

UNITED STATES ATTORNEYS-SERVICES IN CIRCUIT COURT OF APPEALS-COMPENSATION. Although the term of a circuit court of appeals at which a district attorney renders