Counsel for Petitioner.

IV. The respondent denies, on information and belief, the entire fifth paragraph of the petition.

V. The respondent denies that the barge Republic was a seagoing vessel, and also denies that she was used or employed in inland navigation, and submits to the court that it appears upon the face of the petition that the petitioners are not embraced within the provisions 4283-4289 Rev. Stat.

Exhibit C, entitled in the cause, and dated November 21, 1892, was as follows: This cause coming on to be heard this day on the petition of The Myers Excursion and Navigation Company, filed September 25, 1891, and the answers of Elizabeth Engles and others, on exceptions in the answers to the jurisdiction of this court to proceed with said petition, and on motion by the respondents to dismiss the proceedings for want of jurisdiction;

On hearing Mr. Raphael J. Moses, Jr., of counsel for Elizabeth Engles and others, and Messrs. Guggenheimer & Untermeyer, of counsel for Nellie Schaler, and Mr. Fernando Solinger, of counsel for Catharine Kuntz and others, in support of the exceptions to the jurisdiction and of the motion to dismiss, and Mr. Putnam, of counsel for the petitioners, in opposition,

On motion of Mr. Putnam for the petitioners,

It is ordered, that the exceptions to the jurisdiction be overruled, and the motion to dismiss be denied, and it is further ordered that the cause proceed.

Mr. Raphael J. Moses, Jr., for the petitioner.

No one opposing.

THE CHIEF JUSTICE: Leave to file a petition for a writ of prohibition is denied upon the authority of In re Fassett, 142 U. S. 479, 484, and cases there cited.

Denied.

Statement of the Case.

MCMULLEN v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

No. 55. Submitted November 22, 1892. — Decided December 5, 1892.

For the purpose of determining the amount of compensation to be paid to a marshal of the United States for attending Circuit and District Courts, under Rev. Stat. § 829, Held that the court is " in session" only when it is open by its order, for the transaction of business, and, that if it be closed by its own order for an entire day, or for any given number of days, it is not then in session, although the current term may not have expired.

The allowance of a marshal's account by the court does not preclude a revision of it by the proper officers in the treasury, nor justify its payment when it appears that such allowance was unauthorized by law.

THE appellant was United States marshal for the District of Delaware from February 1, 1880 to July 24, 1885. The terms of the District Court for that district began on the second Tuesdays in January, April, June and September in each year, and continued until the Friday or the day preceding that for opening the next succeeding term. The terms of the Circuit Court began on the third Tuesdays in June and October in each year, and continued until the Tuesday or the day preceding that for opening the next succeeding term.

It is found by the Court of Claims (Finding II) that the appellant as marshal "attended the Circuit and District Courts when in session, during the terms of said courts, nine hundred and five days;" that those days were charged by him in his account at $5 per day; that the account, being verified, was approved by the court as just and in accordance with law, but its payment was refused at the Treasury Department; and that appellant's whole compensation, if the above charges were added, would not have exceeded in any one year the maximum of $6000.

Finding VII was in these words: "Claimant has been paid in full at the rate of $5 per day for every day whilst the Circuit and District Courts of the United States in the State of Delaware

Opinion of the Court.

were sitting or in session from and including October term, 1879, to and including June term, 1885. The 905 days referred to in finding II were days occurring between sessions of the courts."

Mr. Charles C. Lancaster for appellant.

Mr. Assistant Attorney General Cotton for appellee.

MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

We are somewhat embarrassed by the obscurity of the findings of fact. The second one states that appellant attended the Circuit and District Courts, "when in session," during the terms of those courts, nine hundred and five days, while the seventh states that those were days occurring "between sessions of the courts." But we assume that the question intended to be presented, and which was determined below, involved the right of a marshal to compensation at the rate of $5 per day, for each day of a term, whether the court was or was not actually in session or sitting on each day so charged. We understand the words "between sessions of the courts" to imply that there were intervening days, between those sessions, when the court, by its own action, was not open, or did not sit, for the transaction of business.

This question depends upon the construction to be given to that clause of section 829 of the Revised Statutes, fixing the compensation to be taxed and allowed to a marshal for different kinds of service, which provides that he shall be allowed "for attending the Circuit and District Courts, when both are in session, or either of them when only one is in session, and for bringing in and committing prisoners and witnesses during the term, five dollars a day." When the court is open, by its order, for the transaction of business, it is in session within the meaning of this section. If the court by its own order, is closed for all purposes of business for an entire day, or for any given number of days, it is not in session on that day, or

Opinion of the Court.

during those days, although the current term has not expired. It is made by statute the duty of the marshal of each District "to attend the District and Circuit Courts when sitting therein." Rev. Stat. § 787. Within its meaning the court cannot be said to be sitting on any day when it is closed, by its own order, during the whole of that day for purposes of business.

In support of his position appellant relies upon the decision in United States v. Jones, 134 U. S. 483, 488, where it was held that the approval of a commissioner's account by a Circuit Court of the United States, under the act of February 22, 1875, 18 Stat. 333, c. 95, regulating fees and costs, was prima facie evidence of the correctness of its items, and "in the absence of clear and unequivocal proof of mistake on the part of the court it should be conclusive." That case is not decisive of the present one, because it appears that the Circuit Court, in approving appellant's account, allowed him, by mistake, for attending court upon days when the court was not in session. Besides, the above act, relating to the accounts of various officers, including marshals, payable out of the money of the United States, provides that nothing contained in it shall be deemed in anywise to diminish or affect the right of revision of the accounts to which it applies by the accounting officers of the Treasury as exercised under the previous laws in force. So that the allowance of the appellant's account by the court did not preclude all revision of it by the proper officers, nor justify its payment where it appeared, as it does in this case, that such allowance was unauthorized by law.

It results that the claim of the appellant to be compensated at the rate of $5 per day, for each day "between sessions of the court," was properly disallowed. 24 Ct. Cl. 394.

Judgment affirmed.

Opinion of the Court.

BALLOCH v. HOOPER.

APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

No. 21. Argued November 7, 8, 1892. - Decided December 5, 1892.

On the facts in this case detailed in the opinion it is Held,

(1) That the deed from Balloch to Hooper of February 25, 1880, was given to better secure Balloch's indebtedness to the Life Insurance Company;

(2) That that company believed in good faith that Hooper was authorized, as holder of the legal title of record, to raise money on the property, and secure its payment by deed of trust;

(3) That there was nothing in the relations between Hooper and Balloch which would prevent the company loaning money to Hooper on the security of the property;

(4) That there was no evidence of a fraudulent combination to injure Balloch;

(5) That there was no ground for questioning the accuracy of the accounting.

THE case is stated in the opinion.

Mr. S. S. Henkle for appellant.

Mr. Job Barnard (with whom was Mr. James S. Edwards on the brief) for appellees,

MR. JUSTICE HARLAN delivered the opinion of the Court.

The appellant, Balloch, became the owner, by purchase in 1878, from J. Bradley Adams, of certain lots on Sixteenth and S streets, in the city of Washington, giving his notes for the purchase money, and securing their payment by a deed of trust covering the whole property. He placed upon record a subdivision of part of the property, making fourteen lots on the west side of Sixteenth street, seven lots (with a small strip) on the south side of Swan street, and six lots on the north side of S street.

In order to obtain money for the construction of houses