Opinion of the Court.

the contract as embodied in the letter of September 18, 1867, and complainant's acceptance thereof. They do not impose upon the complainant the liability to account for the value of the goods in gold in the event of loss by inevitable accident; and not being responsible for the goods, nor liable for the loss thereof, neither he, nor the proceeds of his insurance policies, can properly be subjected to the burden of making good either the defendants' loss, or paying such losses in gold. The insurance, as defendants admit, was not on a gold basis, but only for the invoice price of the goods in currency. The complainant was not an insurer, nor in any way liable for even the currency value of the consigned goods, and it would be a perversion of the contract and inequitable to require either him or his policies to compensate the defendants for their loss in gold.

We think the complainant has failed to make out a claim to compensation for his services in attending to the suits against the insurance companies.

In our opinion the complainant is entitled to the account he seeks by his bill, in which he should be credited with the amounts received by the defendants on the insurance policies in the proportion of $152,266 to $29,327, that being their relative interest in the cargo of the Keese; that the expenses of the litigation, including counsel fees, should be divided between the parties on the same basis; that the complainant is entitled to one-half of the sum of $1463.84, paid by way of general average on the goods shipped on the Blonde; to the further sum of $672.68, for repairing the goods which reached Mexico in a damaged condition; and for whatever defendants realized on life insurance policies of the complainant and on the notes arising from the sale of the Indianapolis lots, if the amount so realized did not have to be repaid in taking up the notes; and with such other amounts as he may have placed in the hands of the defendants, either in the bank account or in the transaction connected with the insurance policies; and the defendants will be credited with all the amounts paid to and for the account of complainant not covered by the foregoing rulings. The account will be stated up to the filing of the bill, and any

Statement of the Case.

balance shown in favor of either side will bear interest from that date.

The decree is reversed, and the cause is remanded to the court below, to be proceeded with in conformity with this opinion.

GIBSON . PETERS.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA.

No. 61. Argued November 2, 1893. - Decided November 13, 1893.

The receiver of a national bank is an officer and agent of the United States within the meaning of those terms as used in Rev. Stat. § 380, providing that all suits and proceedings arising out of the provisions of law governing national banking associations, in which the United States or any of its officers or agents are parties, shall be conducted by the District Attorneys of the several districts, under the direction and supervision of the Solicitor of the Treasury.

If a District Attorney of the United States, acting under the provisions in Rev. Stat. § 380, conducts a suit or proceeding arising out of the provisions of law governing national banking associations, he is entitled to no remuneration other than that coming from his salary, from the compensation and fees authorized to be taxed and allowed, and such additional compensation as is expressly allowed by law, specifically, on account of services named.

THE plaintiff in error brought this action against the defendant in error as receiver of the Exchange National Bank of Norfolk, to recover the value of legal services alleged to have been rendered, or offered to be rendered, by him as United States District Attorney in a certain suit brought in the name of that receiver against one R. H. McDonald, which suit was subsequently, in August, 1885, dismissed on motion of the receiver as settled.

Pursuant to a written stipulation of the parties, the case was heard by the court without a jury. Judgment was rendered for the defendant in conformity with the opinion of the Circuit Judge. 35 Fed. Rep. 721, 729; 36 Fed. Rep. 487. The case is before this court upon a certificate of division of opinion.

Statement of the Case.

There was evidence, on behalf of the plaintiff, as to the extent and value of the services rendered, or offered to be rendered, by him as United States District Attorney. The defendant introduced evidence tending to show that the plaintiff had neither rendered, nor been requested by the receiver to render, any services in the action against McDonald; that by direction of the Comptroller of the Currency the receiver employed other counsel; that the plaintiff's present claim had never been presented to the Treasury Department, nor been allowed by the Comptroller of the Currency; and that he had not been directed by the Solicitor of the Treasury to render the alleged services.

The following are the questions upon which the judges were divided in opinion:

1st. Whether the United States District Attorney is entitled by virtue of his office to appear and act as counsel for the receiver of a national bank in collecting its assets and winding up its affairs without the request or consent of said receiver, and without the direction of the Solicitor of the Treasury?

2d. Whether, conceding his right so to appear, and he does so appear of his own motion, he is entitled to any extra compensation beyond that prescribed by law for his official services?

3d. Whether, conceding his right so to appear, and act, he is entitled to any extra compensation beyond that provided by law for his official services, except such as the Comptroller of the Currency may allow after his claim therefor has been presented to the Treasury Department, according to the provisions of section 299 of the Revised Statutes?

4th. Whether the United States District Attorney, whose official service had been tendered to such receiver and declined by him for the reason that he had employed other counsel acting under the directions of the Comptroller of the Currency and Solicitor of the Treasury, is entitled to extra compensation. for such offer of services, whether the service was rendered by the District Attorney or not?

5th. Whether, conceding his right so to receive extra com

4 Opinion of the Court.

pensation when he has offered to appear and act as official counsel without the request or consent of the receiver, is such compensation payable out of the assets of the bank in the hands of the receiver or out of the funds provided by law for the payment of District Attorneys for their official services?

Mr. Robert M. Hughes for plaintiff in error.

Mr. L. T. Michener and Mr. T. S. Garnett, (with whom was Mr. W. W. Dudley on the brief,) for defendant in error.

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

It is provided by section 380 of the Revised Statutes of the United States, that all suits and proceedings arising out of the provisions of law governing national banking associations, in which the United States or any of its officers or agents are parties, shall be conducted by the District Attorneys of the several districts under the direction and supervision of the Solicitor of the Treasury.

The suit brought against McDonald was one arising out of the provisions of the act of Congress governing such associations, and the receiver in whose name it was instituted was an officer and agent of the United States within the meaning of the above section. Kennedy v. Gibson, 8 Wall. 504; Price v. Abbott, 17 Fed. Rep. 506; Frelinghuysen v. Baldwin, 12 Fed. Rep. 395; Hendee v. Connecticut &c. Railroad, 26 Fed. Rep. 677; Pacific Bank v. Mixter, 114 U. S. 463.

But the important inquiry is whether a District Attorney is entitled to special compensation for services rendered by him. in a suit of the class mentioned in section 380.

The appellant's contention is that he is entitled to reasonable compensation, to be paid from the funds in the hands of the receiver, under that clause of the statute relating to the dissolution and receivership of national banking associations, which provides that all expenses of any receivership shall be paid out of the assets of such association before distribution of the proceeds thereof. Rev. Stat. § 5238.

Opinion of the Court.

Section 770 of the Revised Statutes fixes the sum which a District Attorney is entitled to receive on account of salary.

Sections 823 to 827, inclusive, prescribe certain fees that may be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States, to District Attorneys and to other officers. Those sections are as follows:

"SEC. 823. The following and no other compensation shall be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States, to district attorneys, clerks of the circuit and district courts, marshals, commissioners, witnesses, jurors, and printers in the several States and Territories, except in cases otherwise expressly provided by law. But nothing herein shall be construed to prohibit attorneys, solicitors, and proctors from charging to and receiving from their clients, other than the government, such reasonable compensation for their services, in addition to the taxable costs, as may be in accordance with general usage in their respective States, or may be agreed upon between the parties.

"SEC. 824. On a trial before a jury, in civil or criminal causes, or before referees, or on a final hearing in equity or admiralty, a docket fee of twenty dollars: Provided, That in cases of admiralty and maritime jurisdiction, where the libellant recovers less than fifty dollars, the docket fee of his proctor shall be but ten dollars. In cases at law, when judgment is rendered without a jury, ten dollars. In cases at law, when the cause is discontinued, five dollars. For scire facias, and other proceedings on recognizances, five dollars. For each deposition taken and admitted in evidence in a cause, two dollars and fifty cents. For services rendered in cases removed from a District to a Circuit Court by writ of error or appeal, five dollars.

"For examination by a District Attorney, before a judge or commissioner, of persons charged with crime, five dollars a day for the time necessarily employed. For each day of his necessary attendance in a court of the United States on the business of the United States, when the court is held at the place of his abode, five dollars; and for his attendance when the court is held elsewhere, five dollars for each day of the