
    WILLIAM J. CHINN v. THE UNITED STATES.
    [No. 21236.
    Decided June 23, 1902.]
    
      Chi the Proofs.
    
    A clerk charges for 20 per diem fees, which are allowed and paid. Subsequently the accounting officers decide that the fees should not have been allowed, and ohai-ge the amount to the clerk and deduct it in the settlement of his accounts. He brings his action and the statute of limitations is set up. More than six years have elapsed since the fees were earned, but less than six years since they were disallowed and charged to him.
    I. Where fees have been allowed and paid to a clerk, and the legality of the allowance subsequently becomes a question, and the fees paid are deducted, in the settlement of subsequent accounts the statute of limitations does not run against the original cause of action.
    II. Where fees have been allowed and paid to an officer, and have subsequently been disallowed and charged to him, and he brings his action to recover the money withheld, the defense is in the nature of a counterclaim.
    The Reporters' statement of the case:
    The following are the facts of this case as found bj^ the court:
    I. The claimant, William J. Chinn, was clerk of the district and circuit courts of the United States for the district of Kentucky, at Frankfort, from January 28,1898, to June 30,1896, duly qualified and acting.
    II. During said period he was in attendance on court while actually in session, when court ivas opened and adjourned by orders of the judge, and judicial business actually transacted, 79 days, at §5 per day. The journal shows the following-entries for opening and adjourning court on the days for which the attendance is claimed: “Court met pursuant to adjournment, Present: Hon. John W. Barr, judge (or whoever may have been acting judge),” and “it is now ordered that court be adjourned until the-- day of-, 189 — on which day the court met pursuant to said order. But the judge was not personally present in court on the daj^s claimed.
    III. He made up his accounts for said attendance on court while actually in session, which were duly verified and presented to the United States court for approval in the presence of the district attorney, and orders approving the same as being just and according to law were entered of record. Said accounts were then presented to the accounting officers of the Treasury Department for payment, and payment of per diems in finding iv was refused.
    IV. Item 1. For attendance on court while actually in session, when the court was opened and adjourned by orders of the judge, and judicial business actually transacted in court, 79 da3Ts, at $5 per day, $395.
    Twenty per diems were for attendance on court previous to November 15, 1892, for which an account was rendered, and these sums were paid. But the amounts were recharged on another and subsequent account of plaintiff Juty 1,1893, and being disallowed were recharged against the plaintiff on the subsequent account and the amount retained in the settlement of said subsequent account.
    V. The court was actually opened and adjourned by orders of the judge for the transaction of judicial business in court, and judicial business was actually transacted the number of days charged in said accounts, and the clerk was in actual attendance on the court each and every dajr claimed in accordance with the practice in this district.
    VI. The character of the judicial business done on the days claimed for attendance was such as is usually transacted in open court while actuahy in session, consisting of making an entiy on the minutes each daj7 that the court was opened and adjourned by orders of the judge, orders directing the drawing of juries bj" jury commissioners, orders granting and dissolving injunctions and disposing of cases, the appointment of receivers, petitions for writs of error heard and decided, hearing reports and pleadings, and making orders and decrees in various cases heard and decided.
    The proceedings of each dajr were witnessed on the journal bjr the signature of the judge presiding at the time.
    Under the practice of the Federal courts in Kentucky the sessions are continuous during the terms, and the equity side of the court is always open for the transaction of judicial business, and on such days as judicial business is transacted court is opened and adjourned by order of the judge, and the pro-ceodings entered by the clerk on the journal. This practice began with and has continued since the establishment of the courts in this district. The duties of the clerk are similar to those rendered by him when the courts are opened by the judge at the regular sessions with a jury in attendance.
    
      Mr. Charles C. Lancaster for the claimant.
    
      Mr. P. M. Ashford (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   HowRY, J.,

delivered the .opinion of the court:

Plaintiff was clerk of the District and Circuit Courts for Kentucky from January 28,1893, to June 30,1896, at Frankfort, and brought this action to recover for services as such clerk.

The defense is the statute of limitations as to certain per diems earned more than six years prior to the time of the filing of the complaint.

The petition was filed January 20, 1899. But it appears that the auditing officers had allowed and paid the per diems for attendance on court for twenty days previous to November 15, 1892. Upon learning that the judges were not present on said days (although the record showed that thejr were) the Treasury Department recharged the per diems to plaintiff and kept them out of an account rendered for services performed from January 1 to Juno 30, 1893. This recharge was made about the 1st of July, 1893. It is now contended that the statute of limitations fixed by section 1069 of the Revised Statutes commenced to run at the date of the performance of the per diem services, and in support of this contention it is argued that plaintiff was neither obliged to present his account to the court for approval nor under obligation to send it to the Treasury for audit before beginning an action under the law as it existed at that time, and that the running of the statute can not be postponed through any action taken by the accounting officers.

The case is one of set-off; that is, one of right on the part of the Government to set off its claim for the amount of the per diems earned previous to November 15, 1892 (and subsequently paid), against that much of plaintiff’s account for services rendered within six years preceding the commencement of the action.

The demand of the Government being in the nature of counterclaim the case must be considered as one involving the assertion of a counterclaim rather than one of defense under the statute of limitations. That defense is without application, because the plaintiff was paid the fees on account of his previously earned per diem services, which, by the recharge of the subsequent account, the Government seeks to disallow and improperly withhold. The defendants can not diminish the amount of plaintiff’s dues by recharging and disallowing the foes already paid and at the same time invoke the statute of limitations to plaintiff’s original demand by reason of the recharge.

The per diems set forth in the accounts are correct. They are recoverable as business transacted by the clerk under orders of the judge, although the judge was not personally present in court a part of the time. Finnell v. United States, 36 C. Cls. R., 596; United States v. Finnell, 185 U. S. R., 236.

Judgment in the sum of $395 will be entered for plaintiff.

Nott, Ch. J., was not present when this case was decided, and took no part in the decision.,  