
    JOHN J. ALLEN v. THE UNITED STATES.
    [No. 17349.
    Decided January 9, 1905.]
    
      On the claimant's Motion.
    
    Tlie Supreme Court holds in the SoutlnoortU case that where no arrest was made and no examination took place no case existed entitling a commissioner to the $10 fee prescribed by Revised Statutes, § 19S6. In this ease the claimant seeks to recover fees in detail for drawing complaints, warrants, etc., where no arrest was made. The principal question in the case is whether the fee of $10. is the only fee which a commissioner is entitled to receive for services rendered relating to elections. The defendants, having allowed and paid the commissioner such fees in detail prior to the Soutlvworth case, seek to recover back the payments under their counterclaim.
    I.Where a commissioner’s account is suspended at the Treasury for explanation, and none is given, the court will not exercise jurisdiction.
    II.A commissioner acting under the title “ Elective franchise ” (§ 2020, Revised Statutes) was not entitled to compensation for certifying complaints with the records to the chief of the supervisors of elections.
    III.A commissioner acting under that title was not entitled to any compensation where no arrest was made. He was entitled either to the prescribed fee of $10 or to nothing, and to the $10 only when a case was made by the arrest of the party. (Revised Statutes, § 19S0.)
    IY. The law of the State in which the service is rendered can be looked to in ordinary cases to determine what services were necessary, but will not justify compensation for preliminary proceedings in cases under Revised Statutes, § 1986.
    Y. The law of a State will not justify the allowance of a per diem in proceedings under Revised Statutes, § 1986, where the fee of $10 is “exclusive of all services incident to the arrest and examination.”
    
    YI. Repeals by implication are not favored; but that principle does not extend to a statute defining for the first time a new class of offenses.
    YII. The drawing of a complaint, administering an oath, and issuing a warrant are incidents of a case, but do not make a case under the statute if there was no arrest.
    YIII. The Act 3d March, 1893 (27 Stat. L., p. 609), conferring jurisdiction in cases of election arrests upon the nearest judicial officer must be interpreted without reference to its effect upon commissioners’ claims for fees.
    IX. Warrants issued hut- withheld must he regarded as unnecessary, and can not be made the basis of a claim for fees.
    X. Warrants issued but not served do not take a case out of the decision of the Supreme Court in the Southioorth Case (151 IT. S. R., 179; 161 Id., 639), and are insufficient to make cases from which fees - can arise.
    
      XI. Where the Treasury under a misconstruction of the law allowed detail fees in civil rights cases as in others where there were no arrests, the allowances were not authorized by law.
    XII. The accounting officers should not rescind an allowance that has been made to an officer and pursue him to recover back the money where the transaction remains closed, but if he comes into court and seeks to open it, it is their duty to see that improper allowances theretofore made be deducted. Where an officer seeks to recover the lawful fees in an account which includes unlawful charges, he opens the entire account.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by tbe court:
    I. The claimant, John J. Allen,- was a commissioner of the Circuit Court of the United States for the Eastern District of New York from February 1, 1886, to January 20, 1892, qualified and acting as such. He was also chief supervisor of elections for the district, acting as such.
    II. During said period he performed certain services in criminal proceedings and in cases heard and decided, and made up accounts for same, duly verified, which were presented to the Circuit Court of the United States for approval.
    The court declined to make the usual order of approval, but made an order which, after reciting the proper presentation, said:
    “And it appearing to the satisfaction of the court by said oath that the services herein charged for have been necessarily and actually performed, and no item of said account having been objected to by saicl United States district attorney, who appears for the Government in the matter of the approval of said account, and there being therefore no question in regard to said account presented for the determination of the court, and the said account being by law subject to revision by the accounting officers of the United States Treasury, and my official action herein being limited to the particulars of which I am judicially cognizant,
    “ It is ordered that the said account be, and the same hereby is, approved to the above extent, subject to the revision aforesaid.”
    The accounts covering items 1 to 17 in finding m were made and presented for payment some time subsequent to the periods to which they relate and contained no charges besides those items, and none of the fees claimed in those items were charged in any other account presented to the accounting officers of the Treasury Department for payment. Items 18 to 24 were contained in accounts paid in part, payment of these items 18 to 24 being refused.
    III. 1. For drawing complaints of affiants in various criminal cases for offenses against the laws of the United States, 8,915 folios, at 20 cents per folio — 15 cents per folio having been charged and allowed by the accounting officers, and 5 cents per folio now claimed_$195. 75
    These services were rendered during the period February 1, 1886, to June 30, 1889.
    Of said complaints 162, consisting of 367 folios, were charged for crimes of a general character not covered by chapter 7 of the Title “ Crimes,” for which the amount claimed is_$18. 35
    The remainder of said complaints charged offenses under said title and chapter, and warrants, if issued, were never served, because inquiry developed no offense had been committed.
    2. For drawing jurats to 2,284 complaints of affiants charging offenses against the laws of the United States,
    $342. 60
    Ninety-two of said complaints charged crimes of a general nature not included in chapter 7, title “ Crimes,” and the amounts charged for jurats thereon is_$13. 80
    All the remainder of said complaints charged offenses under said title and chapter. Warrants, if issued thereon, were never' served; no arrests were made because inquiry developed the fact that no offense had been committed.
    Respecting items 1 and 2, claimant’s former accounts for services in the cases referred to were made up at the rates then uniformly fixed and were settled and paid in full.
    3. For reducing testimony of witnesses to writing in various cases heard and decided, 3,370 folios, at 20 cents per folio_$674. 00
    4. For filing 175 separate depositions of witnesses in various cases heard and decided, at 10.cents each-$17. 50
    
      o. For services in 110 criminal cases arising under chapter 7 of the title “ Crimes,” the fee prescribed by section 198G, Revised Statutes, $10 for each case_$1,10Ó. 00
    Upon which claimant has received detailed fees amounting to-■_$810. 40 '
    Balance claimed_ 289. (>0
    Arrests were made in each of the 110 cases, and the defendants were brought before the commissioner and the cases duly heard and decided.
    6. For services in criminal cases where the fees are charged under sections 828 and 847, Revised Statutes, and not included, by oversight, in former accounts settled by the accounting officers__c_$44. 85
    7. Withdrawn by claimant.
    8. For drawing affidavits of supervisors of election and special deputy marshals, verifying the services rendered them in connection with the Congressional election of 188G, the same being for verification of their accounts for compensation claimed, 1 folio each, 1,944 folios, at 15 cents per folio_$291. 60
    9. For administering oaths to supervisors and special deputy marshals as to services aforesaid', at 10 cents each_$97. 20
    10. For drawing jurats or certificates to above oaths upon the affidavits aforesaid, 1 folio each, 1,944 folios, at 15 cents per folio_$291. 60
    Respecting items 8, 9, and 10, each one of the officers whose .affidavit is charged for appeared before claimant, who drew his affidavit as to his services, administered the oath, and added the usual jurat.
    The affidavits in question were required by the Department of Justice.
    11. For certifying complaints in various criminal proceedings for violations of the elective franchise, with the records pertaining thereto, in connection with the Congressional elections of 1886, 1888, and 1890, for transmittal to the chief supervisor of elections, to be filed by him as records of his office, one folio in each case, 2,607 folios, at 15 cents per folio_J_ $391.00
    
      The charges under consideration in all of said proceedings were those under chapter 7, of title “ Crimes.” The claimant was at the same time the commissioner who certified and the chief supervisor of elections to whom he certified said complaints.
    12. Same services as in item 8 above for the Congressional election of 1888, 1 folio each, 8,682 folios, at 15 cents per folio'_$544. 80
    13. Same services as iix item 9 above for the Congressional election of 1888, at 10 cents eaclu_i_$181. 60
    14. Same services as in item 10 above for the Congressional election of 1888, 1 folio each, 3,632 folios, at 15 cents per folio-$544. SO
    15. Same services as in item 8 above for the Congressional election of 1890, one folio each, 5,948 folios, at 15 cents per folio__ $S24. 70,
    16. Same services as in item 9 above for the Congressional election of 1890, at 10 cents each_ $274. 90
    17. Same services as in item 10 above for the Congressional election in 1890, one folio each, 5,498 folios, at 15 cents per folio_$824. 70
    Respecting items 12 to 17, each one of the orlicers whose affidavit is charged for appeared before claimant, who drew his affidavit as to his services, administered the oath, and added the usual jurat. The affidavits in question were required by the Department of Justice, and the general form of the affidavit in question was submitted to and approved by the Department of Justice.
    The fees in items 1 to 17 are not balances unpaid upon accounts presented and settled by the accounting officers; they are fees not previously charged in any former account. .
    18. For issuing warrants of commitment of defendants to jail in default of bail, at $1 each, and entering return of marshal, one folio, at 15 cents per folio_$3.45
    19. For hearing and deciding on criminal charges in case United, States v. A. Ennis, where the proceedings consisted of taking testimony and taking bail, 1 day, $5 per day_$5. 00
    20. For filing and entering 2,180 separate complaints and warrants of arrest issued for violation of the election laws in connection with the Congressional elections of 1888 and 1890, where the warrants were returned unexecuted by the marshal, at 10 cents each-$218. 00
    Services were rendered in civil-rights proceedings, but not in cases, and this item is disallowed.
    21. For making certificate to copy of process in various cases where defendants were held for court, 2 folios each, at 15 cents per folio_$1. 65
    No statute or rule of court shown.
    22. Withdrawn by claimant.
    23. For drawing depositions for complaints in various cases of illegal registration, 4 folios in each case, at 20 cents per folio; oath to affiant, 10 cents; drawing jurat to same, 15 cents, and filing complaints, 10 cents each_$742. 20
    Services charged were in civil-rights proceedings. No warrant issued as the result of scrutiny of lists of voters by commissioner and inquiries at residences. s
    24. For drawing jurats or certificates to acknowledgments of defendents and sureties to bail bonds, 1 folio each, at 15 cents per folio (acknowledgments paid for)_$3.20
    IV. The court finds upon the defendant’s counterclaim that the claimant in his former accounts (which are the basis of this counterclaim) made certain detail fees, and charged for drawing and filing complaints, and where warrants were issued, entering return of the marshal on such warrants, amounting to $3,120.
    The complaints all charged offenses against various defendants for violations of the provisions of chapter 7 of Title “ Crimes,” upon which a number of warrants were issued — how many does not appear — but no arrests were made in any instance and no execution of said warrants was effected. In instances warrants were not issued, but where issued were not served because inquiry developed that no offense had been committed. The accounts presented by the claimant for said services amounted to the sum of $3,120, which said sum was allowed and paid the claimant by the accounting officers by mistake, and in pursuance of the then practice of the accounting officers to allow detail fees in proceedings of that character. This practice was afterwards discontinued and detail fees disallowed except in cases of arrest, and statutory fees were allowed in all cases of arrest.
    The amount counterclaimed is made up of charges for services rendered during the following periods, allowed and paid upon settlement of claimant’s accounts for those periods by the accounting officers, as per Treasury reports specified, the accounts for each period being separate and distinct, as follows:
    Account for period July 1 to December 31, 1886, as per Treasury report 106861_ $662.15
    Account for period July 1, 1888, to June 30, 1889, as per Treasury report 131783_ 1, 087. 80
    Account for period July 1, 1890, to June 30, 1891, as per Treasury report 133451_ 1,029.10
    Account for period July 1, ÍS92, to December 31, 1892, as per Treasury report 134704_ 341. 00
    In settling the accounts in the counterclaim the charges were suspended by the accounting officers for explanations, which were furnished.
    No disallowed balance in any account to which the counterclaim relates is sued for herein.
    Upon the foregoing findings of fact the court decided as conclusions of law:
    (1) That the claimant was entitled to recover judgment on items 1 for $18.35, 2 for $13.80, 5 for $289.60, 3, 4, (5, 8, 9, 10,12,13,14,15,16,17, and 18 in the sum total of four thousand nine hundred and forty dollars and sixty-five cents ($4,937.45), all other items and charges being disallowed.
    (2) That the defendants were entitled to recover judgment on their counterclaim, because of charges illegally and by mistake paid to him on the claim of the plaintiff in the presentation of his former accounts, in the sum of three thousand one hundred and twenty dollars ($3,120).
    (3) That on the whole case the claimant was entitled to recover judgment in the sum of one thousand eight hundred and seventeen dollars and forty-five cents ($1,817.45).
    
      Mr. Charles C. Lancaster for the claimant on the question of counterclaim. Mr. Benjamin F. Tracy and Mr. John J. Allen were on the brief:
    The claimant was a commissioner of the United States Circuit Court, Eastern District of New York, from January 29, 1886, to January 20,1892, and before and after. During the period mentioned he presented accounts for specific services rendered the Government. Those accounts were settled. The charges in them were the same as theretofore paid; were in accordance with the established rulings; were understood generally to be the proper charges for the services specified, and Avere the only charges which would then have been allowed.
    The decisions of the Supreme Court in the cases of Ewing, McDermott, Barber, and Van Duzee (140 U. S., 142, 151, 164, 169) gave additional compensation for such services, notably those referred to in items 1, 2, and 3 of the petition. Following these -authorities, the claimant was entitled to make up accounts for the additional compensation thus authorized and which had not been embraced in any previous account. Under the Comptroller’s rulings these additional accounts were not entertained, for the technical reason that they had not been presented with other accounts of the period to which they related.
    Therefore, the claimant’s remedy was by suit in this court, where similar accounts for like charges have been repeatedly allowed. (0divert'v. 27. $., No. 17613; Johnson v. U. S., No. 17947; Gilbert v. U. S., No. 17693.)
    The principal contention may be regarded as confined to items 1 and 2, a considerable portion of which relates to services rendered in instituting prosecutions under chapter 7, Title “ Crimes,” Revised Statutes.
    It is asserted that commissioners are not entitled to any fees whatever for such sendees in any instance where the marshal does not arrest the accused and bring him for examination before the commissioner who instituted the prosecution.
    A person who renders at indefinite times distinct services, independent of any continued employment or contract, which services are paid for by separate fees, has no running account or continuing contractual relation to the Government.
    The rule is settled that an account heard and determined by accounting officers can not be reopened for correction of error. Tlie same is true of executive officers in general. {Ex puvte Randolph, 2 Brock, 41-7; U. 3. v. Bank of the Metropolis, 15 Pet., 377; Stotesbury v. U. S., 146 U. S., 196; Waddell v. TJ. S., 25 Ct. Cls. E., 323; Armstrong v. U. S., 29 Ct. Cls. E., 148; Cotton v. ü. S., 29 Ct. Cls. E., 207; Kendall v. Stokes, 3 How., 87; Opin. Black, 9 Opin. Atty. Geni., 34; Opin. Bates, 10 Opin. Atty. Geni., 255; Opin. Browning, 12 Opin. Atty. Geni., 386; Opin. Bristow, 13 Atty. Geni., 456.)
    The rule, in general, is that payments made under mistake of law can not be recovered. {Brisbane v. Dacres, 5 Taunt., 143; Elliott v. Swartout, 10 Pet., 137; Lamborn v. County Comers, 97 U. S.,'181; Midland Gt. Western R. v. Johnson, 6 H. of L. Cas., 798; Marshall v. Collett, 1 Y. & C., 232, Exch.; Trigge v. Lavadle, 15 Moore, P.‘ C., 270; Clarke v. Dutcher, 9 Cow., 674; Bank of TJ. S. v. Daniel, 12 Pet., 32; Pollock on Contracts (6th eel.), 439; Rogers v. Ingham, 3 Ch. D., 351.)
    Equitable relief in general will not be granted for error after deliberate examination and judgment. {Hillborn v. TJ. S., 27 Ct. Cls. E., 547; Queen v. Lord Corners of the Treas., 16 Q. B., 357; Hunt v. Rousmaniers, Adm’rs, 1 Pet., 1.)
    Governments are not exempt from the application of the principles referred to. {Co. of Wayne v. Randall, 43 Mich., 137; Supervisors v. Briggs, 2 Denio, 26; Livermore v. Peru, oo Me., 469.)
    In transactions of a commercial character the Government must bear the consequences of its officers’ neglect. {Cooke v. TJ. S., 91 U. S., 389, 398.) '
    And so in contract cases. {TJ. S. v. Bostwiek, 94 TJ. S., 53, 66; TJ. S. v. State Bank, 96 TJ. S., 30, 36; TJ. S. v. Smoot, 15 Wall., 36.)
    Where an officer, the validity of whose appointment was questionable, had rendered service, payment for which was made, but subsequently counterclaimed as unlawfully granted, the court said: “As the claimant, if not an officer de jure, acted as an officer de facto, we are not inclined to hold that he has received money which, ex ceguo et bono, he ought to return.” {Badeau v. TJ. S., 130 TJ. S., 439.)
    
      In other words, as the services had been rendered, the payment, although unlawful, must stand.
    A class of cases is to be distinguished which appear to sustain the granting of relief to the Government against the acts of its officers, .as, for example, where land patents are issued under mistake. Such cases are: Mullan v. U. S. (118 U. S., 271) ; Shipley v. Cowan (91 U. S., 330) ; Wis. C. B. Co. v. Forsythe (159 U. S., 47).
    The principle in the latter class of cases differs from that involved in cases where money is reclaimed.
    As said in Stone v. U. S. (09 U. S., 525), “the patent is but evidence of a grant, and the officer who issues it acts ministerially and not judicially. If he issues a patent for land reserved from sale bj? law, such patent is void for want of authority.”
    Such patent could convey no right. Setting it aside deprives the holder of no property. Other exceptional cases are those involving official action in excess of authority, noncompliance with express provisions of law, fraud, and the like.
    For example, the Government will not be bound where an agreement was made with a Treasury agent having no power to contract. {Whiteside v. U. S., 93 U. S., 247.)
    Or where an oral agreement was made which the law required to be in writing. {Hawkins v. U. S., 96 U. S., 689.)
    Or where Government property was transferred irregularly and by private arrangement when the statute required public sale. {Steele v. Cl. S., 113 U. S., 128; U. S. v. Mo~ Knight, 98 U. S., 179.)
    In business matters the Government is bound by the acts of its officers in transactions, within the line of their duty “ under the principles -of the law of agency as applied to individuals,” and the court saj^s, “ We constantly hold the Government concluded or estopped by such acts of its officers as form part of the res gestae.” {Duval, Receiver, v. U. S., 25 O. Cls. E., 46; McÉlrath v. V. S.< 102 TJ. S-, 426; U. S. v. Burehard, 125 U. S., 176; U. S. v. Stahl, 151 U. S., 366.)
    The character of the cases cited in which counterclaizns have been allowed should be noticed, to wit: Wisconsin E. and Duval, overpayments on running accounts under continuing contracts for carrying mails; McElrath, Burchard, and Stahl, overpayments on running accounts of naval officers whose services were of a continuing nature; Whiteside, agreement made by officer having no authority to contract; Hawkins, oral agreement when written contract was required; Steele, irregular delivery and private transfer of property when public sale was required; Yoes, overpayment to an officer who served continuously for a fixed maximum compensation and whose account was always open to adjustment.
    It will be observed that in no case cited sustaining a recovery back of money paid was the departmental construction under which the unlawful payment was made contemporaneous or continued.
    The great lapse of time since payment of the sums sought to be recovered back should alone forbid consideration of the counterclaim. It has been declared to be “ exceedingly dangerous doctrine ” that where the United States had acted on a settlement and paid the sum found due, such settlement can be opened or set aside years afterwards, “ when the remedy of the party against the United States is barred by the statute of limitations, and the remedies of the United States are intact, owing to its not being subject to any act of limitation.” (27. S. v. Johnston, 124 U. S., 236, 255.)
    Furthermore, an important feature of the case at bar distinguishes it from every case cited in which the Supreme Court has sustained a counterclaim.
    In each one of those cases the basis of the original payment was merely a department ruling, without the characteristics or force of judicial action. In the present instance, however, the amounts counterclaimed were paid after a judicial determination, made under the act of February 22, 1875, upon a hearing by the court, and subsequently affirmed by the revisory power of the accounting officers.
    None of the counterclaims referred to, sustained by the Supreme Court, involved any question which had been presented for the determination of a court, or which had received judicial consideration. This distinctive feature of the case at bar alone renders inapplicable to it any principle bearing upon the question of counterclaim established in the cases referred to.
    There is no running account between the Government and a commissioner. There is no continuing contract between them. Specified fees are paid for distinct services as they may happen to be rendered. The relations between a commissioner and the Government are renewed and cease with each separate service. He may continue in office indefinitely and never perform another service or render another account. Each one of his statements of charges is complete in itself. When a commissioner claims a fee it is never necessary to reopen a former account to decide whether payment shall be made. If,, perchance, reference to a former account is made, as a guard against double payment, that is not a reopening. There is nothing of a running or continuing nature in a commissioner’s services or his accounts therefor. The counterclaim relates to certain settled accounts, the settlement of which are acquiesced in. Those accounts are not reopened in this suit. To reopen is to resettle, to readjust. An account is not reopened unless something in that account is both reconsidered and readjudicated. The claimant does not sue for any disallowed balances in those accounts. The petition embraces no charge contained in the accounts mentioned in the counterclaim.
    The subsequent adjudication giving the present fees was new law. It was virtually a new enactment giving additional compensation for past services. It did not disturb past settlements. To say that it might have been charged and left to be disallowed is not correct. What has been for years understood to be the proper charge is the charge which should be made. The claimant now asks to be granted this additional compensation. The question involves no reexamination of any former account. It reopens nothing. The Government, in considering the question of payment of these new accounts, has not found it necessary to refer to any former account. The defense, in this suit, has not intimated that the legality of these new charges depended upon the previous payment or disallowance of any other account.
    Therefore the claimant, in respect of the items last mentioned, does not invite a reexamination or reopening of any settled account, and such reopening by the defense should not be permitted.
    Authorities sustaining the rule that money paid in accounts standing closed can not be counterclaimed are cited elsewhere.
    A case in point is that of Mullett v. U. S., 21 C. Cls. R., 485; Hillborn v. ü. S., 27 C. Cls. R., 547.
    As in Hillborn’s case, the petitioner does not, as to the items last specified, seek to reopen his settlements. lie has acquiesced in them. His suit is for recovery óf new items standing unpaid.
    We fail to find a counterclaim allowed in any' case where a party, paid for distinct services by fixed fees for which he was not obliged to account, sued for compensation not before claimed or embraced in any prior account.
    A defendant 'pleading set-.off must xorove the same as if he Avere plaintiff in another action. (Waterman on Set-off, 3 note.) The Supreme Court declares that an allowance by a competent officer “ will be prima facie evidence of the amount that is due, and put on the Government the burden of showing fraud or mistake.” “ The fact of fraud or mistake must be established by competent evidence the same as any other fact in issue.” (U. S. v. Real Estate Savings Bank, 104 U. S., 728.) The burden of proof to show that the previous construction of the law was erroneous is on defendant. (Wis. dent. R. Go. v. U. S., 27 C. Cls. R., 440.) That the services in question were properly performed will be presumed. {Phil, ancl Trenton R. Go. v. Stimpson, 14 Pet., 458.) Lawful payment will also be presumed. “ It is presumed that every person who has been engaged in the public service has received the compensation allowed by law, until the contrary shall be made to appear.” (U. S. v. Ripley, 7 Pet., 18.)
    The allegation in the counterclaim is that the sum counterclaimed “ upon false and unlawful charges was by mistake paid to the claimant.”
    This sweeping assertion is wholly unsupported by any evidence whatever. It is not only a reflection upon the intelligence and integrity of the accounting officers as well as the claimant, but is contradicted by the records of the Treasury Department and the Department of Justice.
    The continued approval of payment of the fees in question, both by successive accounting officers and by the law officers of the Government, renders recovery unjust and unlawful. The fees counterclaimed were paid, during a series of years, after full consideration by the accounting officers. Like fees had been continuously paid during many preceding years. All the facts were known. There was no collusion or concealment. Full examination was made in the district by officers of the Government sent specially for that purpose. The allowance of the fees in question was not through oversight or want of due examination of the law. Objections to the allowance were carefully considered.
    For upward of twenty years successive district attorneys, in open court, affirmed and the courts approved the legality of these fees. This is true not only of the New York districts, but of others, as the Department records show.
    The Department of Justice also repeatedly approved payment of these fees.
    In different instances the Attorney-General caused the propriety of allowing these fees to be specially examined, and, after full report by the Department’s officer, directed payment. An example of these reports is produced in this suit.
    Different Comptrollers’ decisions are also cited showing due consideration of the question.
    Further, the allowance to the claimant of such fees during some ten years preceding the payment of the fees counterclaimed constituted an implied contract pursuant to which the claimant rendered the services for which these fees were paid. If nonpayment had been suggested in advance the petitioner might have resigned, as the court said in Patterson'1 s Case (28 C. Cls. K., 321).
    Other commissioners, elsewhere, were paid similar fees for like services. The reclaiming of these fees is subversive of the settled policy of successive administrations continued from first to last, and is without precedent.
    The effect of a usage extending to all payments for such services is conclusive against recovery. The decisions are uniform upon this subject.
    Usage may be resorted to to determine the compensation to be paid, in the absence of statutory authority.- (II. 8. v. Ripley, 7 Pet., 18; U. 8. v. FiTlebrown, 7 Pet., 28.)
    Usage sufficiently continued becomes law. The contemporaneous construction of a statute by the executive officers of the Government whose duty it is to execute it ought not to be overruled by the courts without cogent reasons. (Ü. 3. v. Moore, 95 U. S., 760; Hahn v. ü. S., 107 U. S., 402; Brown v. V. S'., 113 U. S., 568; Ü. '8. v. Philbrick, 120 U. S., ' 52; U. 8. v. Johnston, 124 U. S., 236; Pennoyer v. McOon-naughy, 140 U- S., 1.) ■
    Continued usage and contemporaneous construction are strong evidence of what the law is. (Brown, Legal Maxims, 682; Robertson v. Downing, 127 U. S., 627; Wisconsin Central R. R. v. XI. 8., 27 C. Cls. R., 440-; U. 8. v. Macdaniels, 7 Pet., 1.)
    The Supreme Court declares that long practice amounting to a contemporaneous and continuous construction of the statute, concurred in by judges and accounting officers, and continued for many years, “ must be regarded as absolutely conclusive in its effectD (U. 8. v. Hill, 120 U. S., 169; U. 8. v. McDermott, 140 U. S., 151; U. 8. v. Alabama G. S. R. Go., 142 U. S., 615.)
    The approval by the courts of the charges covered by the counterclaim and of like charges during a long series of years is decisive of their legality, and bars recovery.
    The Supreme Court has said: “ The approval of a commissioner’s account by a Circuit Court of the United States, under the act of February 22, 1895, is prima facie evidence of the correctness of the items of that account, and, in the absence of clear and unequivocal proof of mistake on the part of the court, it should be conclusive.” (Ü. 8. v. Jones, 134 U. S., 483; U. 8. v. Ewing, 140 U. S., 142.)
    Commissioners are subject to the supervision and control of ■ the court. (U. 8. v. Allred, 155 U. S., 591.) Acting under such supervision, the petitioner performed these services year after year for a compensation approved by the court’s repeated orders. This long-continued and unbroken practice, under the express, repeated, and uniform rulings of the court, was, in effect, the equivalent of a performance of service under a rule of court. (27. 8. v. Dimdy G. G. A., 76 Fed. Pep., 355.) That proper fees must be allowed for such services is well settled. (27. 8. v. Vanduzee, 140 TJ. S., 169; 27. S. v. Allred, 155 U. S., 591; 27. S. v. McDermott, 140 U. S., 151.)
    “ The approval of a commissioner’s account under the act of February 22, 1875 (18 Stat., 333), is prima facie evidence of the> correctness of the items of that account, and in the absence of clear and unequivocal proof of mistake on the part of the court it should be conclusive,” even upon the revising officers. (27. 8. v. Jones, 134 U. S., 483.)
    And when the conclusive character of the court’s adjudication has been affirmed by the statutory revising power, whatever the measure of that power may be, the right to question the account is exhausted and the determination must be absolute and final. The Government now seeks by this counterclaim to question collaterally that final determination. There can be no such retrial of adjudged matters in this proceeding. It is well settled that where jurisdiction has attached everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights involved. (Nash v. Williams, 20 Wall., 226; McNitt v. Turner, 16 Wall., 352; White v. Grow, 110 U. S., 183; Dowell v. Applegate, 152 U. S., 327.) Therefore if the legality of the fees counterclaimed might have been doubted no such question can be considered in this «ui t.
    
      Mr. Philip M. Ashford (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   I-IowRY, J.,

delivered the opinion of the court:

This cause was heard and decided some years ago. Plaintiff thereupon filed a motion to amend the findings and for a new hearing generally. For some unexplained reason, although the motion was regularly docketed and called and Government counsel were always ready, the case was not brought to final hearing until the close of the last term. The questions presented by the motion are substantially the same originally argued and considered.

The plaintiff was a commissioner of the Circuit Court of the United States for the Eastern District of New York from January 29, 1886, to January 20, 1892, and before and after. He was also chief supervisor of said district under the provisions of Title XXVI, Revised Statutes of the United States, entitled “ Elective franchise.” Between the dates mentioned, as commissioner, he presented accounts for services rendered the Government, which were duly audited and paid. The charges in those accounts, however, did not include the items covered in the present suit, and it is conceded that the accounts presented and paid contain the only charges which would have been allowed and paid at the time of their presentation.

Early in 1892 the plaintiff made up the account for $1,988.40, upon which the original petition in this case is based, covering specific services alleged to have been rendered for the six years preceding that time, and presented the same to the court for approval. After reciting that the account had been presented in the presence of the assistant district attorney, and that he had objected to none of the items, the court made the order shown in the findings.

Subsequent items were presented and approved in the same qualified language.

On the presentation of the various accounts payment was refused and' notice of the disallowances given. The amendment to the petition introduced February 16, 1893, swells the total amount claimed to $7,187.15, made up of an aggregation of fees not presented with the regular accounts of plaintiff, but which he claims to have omitted for the most part, understanding that they would not be paid.

The defendants particularly object to those of the fees set forth in the' bill of particulars growing out of alleged prosecutions finder chapter 7 of Title “ Crimes ” relating to elections. As to those fees they contend that the statute (sec. 1986) has taken from the commissioner all fees in detail and substituted therefor a gross charge of $10 in each case, from which it would result that no charge can be allowed for drawing and filing complaints, per diems, administering oaths, and other services in detail, because there were no cases before the commissioner.

The findings explain in brief the allowances and disallow-ances, items 1, 2,11, 20, and 23 in finding m (with the exceptions noted) are hereinafter considered as relating to civil rights proceedings.

Item 3 of finding m is for writing out testimony in 177 cases, 3,370 folios, or an average of 19 folios to each of the cases.. The defendants submit that, in view of the refusal of the judge to make an unqualified approval of this item, claimant’s testimony is not sufficient to overcome the knowledge of the court that on the average 19 folios is much more than necessary for a commissioner to set down in substance the testimony upon any one hearing, who is by law restricted to four witnesses in the absence of a certificate by the district attorney that more were necessary, which certificate does not exist here. We can not say that the testimony is insufficient to disallow the whole item, nor that there was needless prolixity, as argued by the defense. We are without information, it is true, as to the particulars concerning these cases. The Government submits that 6 folios per case would be sufficient compensation. This would be an arbitrary rule to adopt, and in the face of the testimony of the plaintiff (which is all we have), alleging the necessity for the work and the number of folios, we allow the charge.

Item 4 is explained in the findings, and is allowed.

Item 5 is allowed on the showing that there were arrests and cases.

Item 6. Allowed as stated.

Item 7 is withdrawn.

Items 8, 9,10,12, 13,14,15,16,17, and 18 are allowed and sufficiently explained.

Item 19. Disallowed because when suspended for explanation none was given. The requirement of the Department for an explanation was reasonable, and until complied with the court will not take jurisdiction. (United States v. Fletcher, 147 U. S. R., 664.)

Item 20 is disallowed.

Item 21. Disallowed as unauthorized, certificates being a permissible charge only when a rule of court or a statute requires them.

Item 22 is withdrawn by claimant.

Item 23 is disallowed

Item 24 is disallowed, as claimant has been paid for acknowledgments.

Item 11. Is disallowed in toto. The charge for certificates can-not be justified. The statute requires commissioners performing duties in Congressional elections to forward to the chief supervisor for the judicial district all complaints for preservation. (Sec. 2021, E. S.) The original complaints must be sent, not copies. It is the chief supervisor who must preserve and file the originals. The commissioner need not make copies for himself as commissioner. Another objection is that the transmission of these papers is imposed upon the commissioner by the same authority that puts upon him the power and duty to hear civil-rights cases, and the same statute limits his compensation in each case to $10, which would include this step in the proceedings of transmitting the papers to the chief supervisor.

The main question presented for determination is whether the plaintiff, as commissioner, is entitled to any fees in civil-rights proceedings when no arrests were made and no cases existed.

The liability of the defendants on this issue, which includes the right of the Government to counterclaim, depends upon the construction of the statutes relating to commissioners’ fees in such proceedings. .In the cases which have already been adjudicated, relating to fees of commissioners in such proceedings, the exact question involved in this case, according to the contention of the counsel for the plaintiff, has not been passed upon. On the other hand, the defendants contend that the question is res judicata by the decision of the Supreme Court in SouthworWs ease (151 U. S. R., 179, and 161 U. S. R., 639).

The chapter relating to elections was limited to crimes against the elective franchise and civil rights .of citizens. The provisions of the whole chapter were intended to protect the freedom and sanctity of the ballot in providing for the punishment of those preventing citizens from voting; of those intimidating voters; of those conspiring to injure citizens in the exercise of civil rights; of those depriving citizens of such rights under color of local law; of those voting or registering fraudulently, and of those obstructing the execution of process. Larger powers were given to commissioners to enforce the statute, but it was never intended to permit the official most responsible for the proper enforcement of such a law to become the instrument of partisans in any election by issuing warrants on trival complaints or opening the doors to the careless and improvident use of ‘process for selfish or unlawful purposes. The Congress was dealing with a subject that, in providing for the use of preventive measures to further fair elections, used precautions to protect the citizen in his right to vote without molestation.

Without some defined limit to fees of commissioners, it is manifest that statutes intended to protect citizens in their civil rights were liable to be used to vex and oppress the electors while unjustly increasing the fees of such officials. It seems reasonable, therefore, to suppose that there was an intention to deprive commissioners of the incentive to multiply fees in the unlimited issue of warrants based on mere suspicion without the exercise of the greatest circumspection and care and yet have every reasonable complaint acted upon by granting larger compensation in actual cases.

The plaintiff contends that the courts have recognized two distinct classes of services of commissioners — the judicial, referred to in section 1986, and the clerical, referred to in the sections preceding the one last quoted — resting compensation for each upon a separate basis; that there have been positive allowances of fees for drawing complaints in ordinary oases/ that, referring to fees for complaints, the provision must be taken and construed liberally, oil the theory that the Government does not require the services of commissioners without compensation; that in view of the requirement of the New York Code of Criminal Procedure (directing that when a person is accused of crime the depositions of the informant and prosecutor and others must be taken), the commissioner can lawfully make the charges by virtue of section 1014 of the Revised Statutes (U. S.), because by that section the laAv of the State must be observed to determine what is neces-saiy, and, inferentially, what services can be charged for; that under the acts of Congress the arrested party must be brought for hearing before the nearest commissioner for' trial, in which event the officer issuing the warrant would sometimes be deprived of any compensation whatever, and, finally, that the fee bill (sec. 847, R. S.) recognizes a distinction between services in a “ case ” and those of a preliminary character in all investigations and prosecutions of.persons charged with crime against the laws of the United States.

Four sections of the Revised Statutes bear directly upon the question. Section 1982 authorizes and requires district attorneys, marshals and deputy marshals, commissioners, and officers especially .empowered, at the expense of the United States, to institute prosecutions against all persons violating any of the provisions of the chapter relating to elections. Section 1983 directs the circuit and district courts of the United States to increase the number of commissioners' so as to afford a speedy and convenient means for the arrest and examination of persons charged with the crime referred to in the preceding section, with authority invested in said commissioners, and the requirement as well, to exercise all the powers and duties conferred on them with regard to such offenses in like manner as they are authorized by law to exercise with regard to other offenses against the United States. ‘ Section 1984'empowers commissioners within their respective counties to appoint from time to time one or more suitable persons to execute all such warrants or other process as the commissioners might issue in the lawful performance of the duties, such warrants to run and be executed anywhere in the State or Territory within which they are issued. Section 1986 is as follows:

“ The district attorneys, marshals, their deputies, and the clerks of the courts of the United States and Territorial courts shall be paid for their services in cases under the foregoing provisions the same fees as are allowed to them for like services in other cases; and where the proceedings are before a commissioner, he shall be entitled to a fee of $10 for his services in each case, inclusive of all services incident to the arrest and examination.”

The first clause of the last section in terms restricts compensation of services rendered by district attorneys, marshals, their deputies, and the clerks of the courts to “ cases.5' ’ But plaintiff claims that as to commissioners the last clause of the section leaves them free to claim for clerical and ministerial services in all preliminary proceedings not resulting in cases, the fee of $10, which the statute declares them entitled to for services in each case, being for the performance of judicial duties. That clerical services in proceedings independent of cases must be compensated for as “ extra judicial ” labor, under the New York Code of Criminal Procedure, as stated.

It is not meant to imply that a commissioner could at any time refuse to entertain complaints under any statute imposing the duty of issuing a warrant where reasonable ground existed to believe that a crime had been committed and that the person complained of had committed it. But where a commissioner is called upon to draw a complaint, administer an oath, and issue a warrant with the means at hand to verify the truth of-the charge without making a case against the person complained of, it was clearly the duty of the officer to resort to these means to satisfy himself of the probabilities of the commission of the alleged offense.

The findings show that plaintiff was the chief supervisor under the chapter relating to the elective franchise at the time. Lists were in his hands or at his command containing the names of all persons entitled to' vote. Where names upon these lists whose right to register or vote was honestly doubted it was the duty of the chief supervisor to verify the lists by proper inquiry and examination at the respective-places assigned by the persons on the lists as their residences. (Sec. 2026, Rev. Stat.) Many of the complaints are stated by the commissioner — how many he does not specify — to have been found to be errors of ignorance or unintentional misrepresentation or the like on the part of those charging the commission of offenses, and in such cases- warrants were withheld. Some warrants issued under the circumstances, set forth were not charged for, but. others are charged for. No compensation can be claimed for this commissioner where an inspection of the lists and an inquiry at a residence would develop the probable truth of the matter favorably to those charged. For the service of examining poll books and making inquiries at residences, plaintiff was compensated in his capacity as chief supervisor. In not placing the warrants in the hands of the marshal at once to execute, plaintiff must also have had his doubts as to the propriety of doing so. , While the law of the State in which the .services are rendered can be looked to in ordinary cases to determine what are necessary, the law of no State would justify compensation for preliminary proceedings not resulting in cases under the statute which provided for compensation only in cases.

Nor does the law of any State for any kind of a proceeding not resulting in a case sanction over an act of Congress the practice of charging per diems before the issuance of warrants as shown by the seventh item of the present suit, (United States v. Patterson, 150 U. S. R., 69.) Under this authority this charge for hearing and deciding on criminal complaints to determine the issuance of warrants was abandoned at the hearing, but in connection with the other*proof in the case it is clear that plaintiff made up in his account for 1886 per diems of $5 in “ proceedings ” but not in cases, •and secured payment. The account for the year mentioned discloses items paid of $7.05 in such instances, of which $2.05 was evidently for the jurat, the filing of the complaint, entering and .docketing the same, and issuing the warrant, and the other part of the charge for determining whether to take the complaint or not. These improper payments, few in number, are included in the counterclaim hereafter to he noted.

But it is urged that to deny compensation for clerical work without cases is a repeal of the general fee bill (fixing commissioners’ compensation) by implication, which the law does not favor.

While repeals by implication are not favored, that principle can not be invoked against a statute defining for the first time a new class of offenses and fixing the standard of official fees at the same time.

The drawing of a complaint, administering an oath, and issuing a warrant are the incidents of a case. Without “ cases ” under the election laws these incidents for purposes of compensation to officers could not arise. The entire legislation on the subject was tentative. The authority for this is the statement of Mr. Justice Brown in Sherman v. United States (155 U. S., 682), where it is said: “ It is evident that no permanent system for the carrying on of Congressional elections was intended to be established.” But it is said Congress intended to increase the per diem allowed in other kinds of cases on the assumption that 'it would take-an average of two days for hearing and deciding a single election case. Besides denying to all other officers charged with the duty of instituting prosecutions any fees unless there were cases (including the special officers provided for-ín section 1987), there is greater reason to believe that commissioners were not favored in the matter of fees to the disadvantage of their coadjutors in the work, for the reason that Congress did not intend to compensate for any service not connected with an actual prosecution under an experimental law. Whatever may be conjectured as to the time it would take to hear a case, the fact remains that many cases of any character can be sometimes heard in one day; and in election cases commissioners could do what they could not in other cases — charge double the per diem allowed in other cases for as many cases as could be heard in one day.

If the rule would now and then work injustice — as in cases where one commissioner issued the warrant and another heard the case on the return of the warrant by the officer executing it at some point in the State distant from the officer taking the complaint, and but one fee could be paid — the nonreturn of warrants before other commissioners prevented any loss of fees to the one issuing the warrant, until the passage of the act (preceding the final repeal of the whole chapter) conferring jurisdiction upon the nearest judicial officer before whom prisoners were required to be taken as arrests were made. (Act of March 3, 1893, 27 Stat. L.,. 609.)

The amendment to the law in the particular mentioned came so late and in correction presumably of inconvenience and wrong to the citizen in being subjected to answer complaints at points remote from the residence of such citizen, the action of Congress in this amendment must be read without reference to its effect upon commissioners’ claim for fees in cases of distant arrests.

But discussion is beside the question if the matter has been settled for us, as earnestly contended by the Government.

South-worth presented a claim (151 U. S. R., 179; 161 U. S. R., 639) alleging that as commissioner he made a docket entry of all the proceedings in each case, including inter alia the drawing of the affidavit, the issuing of the warrant, the return of the officer, the arrest and examination of the person charged in each case where an arrest was made, the number of oaths administered and affidavits filed, etc. As to 77 cases in which the persons arrested were held for trial his account was paid, but refused as to other cases. An amended allegation was introduced to show in a general way the facts and circumstances arising by the laws of Louisiana, from which the petitioner claimed he was justified in believing probable cause existed that offenses had been committed.

The court held: (1) That when a defendant was arrested and an examination held there was a criminal case entitling the commissioner to a fee, although the examination resulted in a discharge; (2) that when no arrest was made and no examination took place, no case had arisen within the meaning of Revised Statutes, section 1986, entitling the commissioner to the fee provided by law.

Because no charges were made for drawing complaints and issuing warrants, and no items stated which could form the basis of an account upon which the accounting officers or the court could pass, the plaintiff thinks the court could not on the record, and in fact did not, pass upon the legality or propriety of payment for “ instituting ” the prosecutions by taking the complaints. While the court did say, on the appeal of the plaintiff from the judgment of this court sustaining the demurrer of the Government to the whole petition, that it would consider the petition as though it alleged but one case before the commissioner, one complaint filed, one warrant issued, and one party arrested, and that the facts attending the prosecutions should be fully presented in order that the bona fides of the transaction might be determined, it also said if the commissioner had proceeded in good faith to render services, acting upon a complaint manifestly intended to charge an offense, and, the defendant having been arrested ■upon svch complaint, an examination was had, compensation would follow. As to 1,303 cases, in which there was an arrest, examination, and discharge of the defendant, a cause of action was stated and the cause remanded as to them.

We think the language used by the court, its reference to the statute ■ applying fees .to a “ case ” only, and the action directed to be taken to investigate charges only where there was an arrest, excluded consideration of all charges not in cases, the clerical as well as the judicial service.

Nothing in the Southworth case shows that he waived the lesser fees included in the greater claim except the mere fact that he thought he was entitled to $10 in what he called each case. His petition was framed on the theoiy that he was entitled to that or nothing, and, as we think, was finally decided on that theory.

The Treasury Department acted upon this construction and the Department of Justice governed the action of its officers in dealing with other accounts as did the accounting officers of the Treasury. The plaintiff, however, had brought his suit before the Supreme Court had considered the question at all, and there was nothing left for him to do but still argue for constructive fees. There was something possibly to gain if he stood on his petition and much to lose if he did not.

Without impugning the good faith of the plaintiff on the record as presented, we think .the warrants issued but withheld, whether any such are embraced in the counterclaim or covered in the j>resent demand, were unnecessary. If the services in getting up these warrants were performed for the convenience of the officer, or were manifestly unnecessary or useless — even if they be such as he judges proper for himself — they can not be made the basis of a claim against the Government. (Dennison v. United States, 168 U. S. R., 241.)

As to the warrants issued but not served, we will not establish a different rule for the Treasury than that accepted there for'several years on the authority of the South-worth case, but will adhere to the letter and spirit of section 1986 as the safe rule applicable to the claim.

It is the only safe rule, too, if the amount allowed, in the language of the Southworth decision, “ precludes the idea that the mere filing of a complaint and issue of a warrant is sufficient ” to. make cases from which alone fees can arise.

These views sustain the set-off of the Government to the extent of fees paid to the plaintiff on other accounts containing charges similar to those rejected here unless the counterclaim be denied application for reasons other than those considered and stated. The Treasury statement is not denied by the testimony pf the plaintiff that‘charges and collections were made in some 1,400 or 1,500 instances where there were no cases. Plaintiff admits that presumably the Treasury statement is correct and establishes the findings of fact on the amount of the set-off.

It being made to appear that under a custom of the Treasury Department existing during the time covered by plaintiff’s services and other accounts the provisions of section 1986 were ignored and commissioners allowed detail fees in civil-rights cases as in others, and that plaintiff’s former accounts for services where there were no arrests of persons accused of offenses under said chapter relating to the elective franchise had been allowed and paid, the defendants now demand that these improper allowances in the accounts of the plaintiff heretofore presented shall- be deducted from the proper allowances of the present account. According to. the certificate of the accounting officers in evidence, plaintiff was allowed and paid for services preliminary to the arrest of persons accused of offenses in civil-rights proceedings and where there were no cases sums aggregating $3,120.

But it is argued on behalf of the plaintiff that the court having passed upon ” the charges counterclaimed, its judgment approving the accounts’and followed by their payment is conclusive, and can not be collaterally questioned through the counterclaim; the amounts counterclaimed can not, in any event, be deducted from the sum due the claimant upon his petition, because an offset bj^ the Government may be sustained only where there exists a running account between the parties or where the claimant reopens a settled account by suing for a balance disallowed upon such settlement, and where no peculiar circumstances appear to make recovery inequitable and the questions involved in the counterclaim have not been already judicially determined.

The multitude of authorities presented in support of these propositions need not be considered. We think the claimant has brought himself distinctly within the rule laid down by the Supreme Court in a matter recently adjudicated, where it is said that while it is not seemly for the accounting officers to rescind an allowance which has been made to an officer and pursue him to recover back the money paid thereon, yet when he comes into court and seeks to open up the same account it is not only proper, but their duty, to demand that any improper allowances should be deducted from any improper disallowances which may now be made good to him. 164 U. S. R., 190.)

The mistaken custom in the Treasury Department under which the plaintiff in this case received fees to which he was not entitled does not justify him in falling behind the mistakes of others on an unlawful demand of his own when he seeks to recover other amounts bjr suit against the Government which include unlawful charges of a character similar to those heretofore paid. The plaintiff now concedes the incorrectness of the methods of the accounting officers and seeks by one of his items to have reviewed all of the cases in which his detail fees amounted to less than $10 and to apply section 1986 now. He is entitled to enough to make up these fees to $10 in each “ case,” and this part of the demand proves the incorrectness of the charge in those items for ' specific fees where warrants were not served.

If the action of Department executive officers in matters of account and payment can not be regarded as a conclusive determination of the rights of the parties when brought in •question in a court of justice; if, on grounds of public policy, the Government can not be bound by the 'action of its officers in making unauthorized payments, and if the person receiving money unlawfully paid can not retain the fruits of actions not authorized by law resulting from erroneous conclusions of Government agents as to the legal effect of the statutes under or in reference to which money has been paid, then we see no reason why the counterclaim in this case may not be maintained. The plaintiff denies that bjr his petition in the present suit he is attempting to reopen any of his former accounts, but the fact remains that items of the account in suit present for correction his former account.

If' an executive officer like the Postmaster-General can •cause suit to be brought where money has -been illegally paid by reason' of misconstruction or misapprehension of the law in reconsideration of prior decisions, and if,.in his judgment, money has been paid without authority of law, and he has money of the same claimant in his hands, and may hold it subject to the decision of the court when the claimant sues, we can find nothing in this case to prevent the Government from asserting the principle that a party receiving money illegally paid by a public officer is liable eco aequo et iono to refund. (Milchrist v. United States, 31 C. Cls. R., 403; Yoes v. United States, 30 C. Cls. R., 370; Wisconsin Central R. R. v. United States, 164 U S. R., 190; McElrath v. United States, 102 U. S. R., 426.)

For the reason stated, we sustain the defendant’s plea of set-off to the extent of the fees improperly and unlawfully paid to the plaintiff in the settlement of his former accounts. The amount of the counterclaim being $8,120, this sum, due to the United States, is ordered set off against so much of the demand of the plaintiff as is established by the findings to be due to him by the present account. The sum found due and payable by the account is $4,937.45, leaving a balance in plaintiff’s favor (after deducting the amount of the set-off) of one thousand eight hundred and seventeen dollars and forty-five cents ($1,817.45), for which judgment will be entered.  