Opinion of the Court.

found, and were not to conclude either the claimant or Congress. No appeal, therefore, could be taken from the report of the Court of Claims made to Congress under that act. The liability of the government for the payment to those entitled to it of the amount of damages sustained by them by reason of the capture of the ship Hannah and its cargo, owned by the firm of Messrs. Gilliat & Taylor, was found by the Court of Claims and reported to Congress pursuant to the act of 1885, and the appropriation was subsequently made by that body for the payment of such damages. The person to whom the appropriation was made was unable to receive the same, because of his inability to comply with the proviso contained in the act of appropriation. For the purpose of ascertaining the person who might be entitled to recover and receive the sum already appropriated by Congress for the payment of the damages described, Congress passed the act referring to the Court of Claims that single question, and that court, after having ascertained the fact upon sufficient evidence, was by the act directed to certify the same to the Secretary of the Treasury. As the action of the Court of Claims upon the original claim made under the act of 1885 was not the subject of an appeal to this court, but was simply advisory in its nature, the whole matter being left to the discretion of Congress, we think it clear that it was not the intention of that body to permit an appeal from the finding of the Court of Claims upon the subsidiary question as to the particular person to whom the appropriation already made by Congress should be paid.

It was undoubtedly the intention of Congress, by the language used in the act of 1894, to refer to the Court of Claims simply the ascertainment of the proper person to be paid the sum which it had already acknowledged to be due to the representatives of the original sufferers from the spoliation, and it was not intended that the decision which the Court of Claims might arrive at should be the subject of an appeal to this court. We think Congress intended that when such fact had been ascertained by the Court of Claims, upon evidence sufficient to satisfy that court, the fact was to be certified by the

Counsel for Parties.

court to the Secretary of the Treasury, and such certificate was to be final and conclusive.

The case resembles in some aspects that of Ex parte Atocha, 17 Wall. 439. It differs from Vigo's case: Ex parte United States, 21 Wall. 648, because the original claim was never referred to the Court of Claims for such judicial action as should terminate in a judgment, but it was only referred to it by Congress for the purpose of receiving what is termed its advisory conclusions, upon which Congress would proceed in its discretion.

But aside from either of the above cited cases, the nature of the original claim and the manner in which it has been treated by Congress, and the language of the appropriation, as contained in the act of 1894, all clearly lead to the conclusion that Congress intended the decision of the Court of Claims to be final, and that the Secretary of the Treasury should pay upon receipt of the certificate provided for in the act. The motion to dismiss the appeal is, therefore, granted, and the

Appeal dismissed.

UNITED STATES v. HEWECKER.

CERTIFICATE OF DIVISION IN OPINION FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 547. Submitted October 13, 1896. Decided October 26, 1896.

Sections 651 and 697 of the Revised Statutes, relating to certificates of division in opinion in criminal cases were repealed by the judiciary act of March 3, 1891, 26 Stat. 826, both as to the defendants in criminal prosecutions, and as to the United States; and certificates in such cases cannot be granted upon the request either of the defendants or of the prosecution. Rider v. United States, 163 U. S. 132, on this point adhered to.

MOTION to dismiss. The case is stated in the opinion.

Mr. Abram J. Rose for the motion.

Mr. Assistant Attorney General Dickinson opposing.

Opinion of the Court.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

Hewecker was indicted for the murder of one Miller, on January 17, 1892, in the bay of Havana, off the island of Cuba, on board an American vessel, within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, in the Circuit Court of the United States for the Southern District of New York, that district being the district in which he was found and into which he was first brought. To the indictment he entered a special plea in the nature of a plea in abatement, to the effect that the indictment was not found until March 10, 1896; that Miller died January 21, 1892, in Cuba, without the United States, and that under and by virtue of section 1043 of the Revised Statutes of the United States he could not be prosecuted or tried; that from January 17, 1892, until the date of the finding of the indictment he had not fled from justice but had been confined in a prison at Havana, Cuba, upon a charge of assault inflicted in that city; and that therefore the offence with which he was charged by the indictment was barred by the statute of limitations. To this plea the United States interposed a demurrer and argument was had thereon, whereupon the judges of the Circuit Court, the court being held by a Circuit Judge and a District Judge, announced that they were divided in opinion upon certain questions of law arising on the demurrer, and the points upon which the judges disagreed were at the request of the United States certified to this court. The case was submitted on a motion to dismiss.

By the judiciary act of March 3, 1891, it was provided that this court should not have appellate jurisdiction by appeal, by writ of error, or otherwise, over the Circuit Courts, except according to the provisions of the act; and jurisdiction was specifically given in "cases of conviction for a capital or otherwise infamous crime."

In Rider v. United States, 163 U. S. 132, we decided that sections 651 and 697 of the Revised Statutes in relation to certificates of division of opinion in criminal cases were repealed

Opinion of the Court.

for the reasons given therein. It is true that in that case the defendants had been found guilty and that the certificate of division was on a motion for new trial. The general rule was that this court could not, upon a certificate of division of opinion, acquire jurisdiction of questions relating to matters of pure discretion in the Circuit Court, and, therefore, that a certificate on a motion for new trial would not lie, but where the questions presented went directly to the merits of the case it had been held that jurisdiction might be entertained. United States v. Rosenburgh, 7 Wall. 580. And accordingly we did not dismiss the certificate because made on a motion for new trial, since the maintenance of the information at all depended on the points certified.

In this case it is contended that the right of the United States to proceed upon a certificate of division was not brought before us in that case and that the reasons assigned by us for that decision are not clearly applicable here. But we are unable to arrive at any other conclusion and see no reason for a different opinion on the general question than there expressed.

By the act of March 3, 1891, appellate jurisdiction on error was given in all criminal cases either to this court or the Circuit Court of Appeals in favor of the accused, and, as to them, sections 651 and 697 of the Revised Statutes did not remain in force. And if the sections were repealed so far as defendants were concerned, we think it follows that this was so as to the United States, and that a certificate which could not be granted upon the request of the defendants could not be granted on the request of the prosecution.

In United States v. Sanges, 144 U. S. 310, it was held that the act of 1891 did not confer upon the United States the right to sue out a writ of error in any criminal case, and as that right was given in favor of the accused in all such cases, and review by certificate done away with without any specific saving in favor of the United States, we are of opinion that the reasoning in Rider v. United States applies, and that the act furnishes the exclusive rule. The appellate jurisdiction was increased in many respects by that act and was curtailed in others, and while enlarged in criminal cases in favor of

Statement of the Case.

defendants, it was at the same time circumscribed as to the United States by the specific provisions relating to the particular subject, conceding that under the Revised Statutes the remedy by certificate was open to be availed of by the United States.

Certificate dismissed.

UNITED STATES v. KURTZ.

APPEAL FROM THE COURT OF CLAIMS.

No. 530. Submitted October 13, 1896.

Decided October 26, 1896.

A clerk of a Circuit Court who is directed by the court to keep a criminal final record book, in which are to be recorded indictments, informations, warrants, recognizances, judgments and other proceedings, in prosecutions for violating the criminal laws of the United States, is not entitled, in computing folios, to treat each document, judgment, etc., as a separate instrument, but should count the folios of the record as one instrument continuously from beginning to end.

A clerk's right to a docket fee, as upon issue joined, attaches at the time such issue is in fact joined, aud is not lost by the subsequent withdrawal of the plea which constituted the issue; and this rule applies to cases in which, after issue joined, the case is discontinued on nol. pros. entered.

When a list of the jurors, with their residences, is required to be made by the order or practice of the court, and to be posted up in the clerk's office or preserved in the files, and no other mode of compensating the clerk is provided, it may be charged for by the folio.

The clerk is also entitled to a fee for entering an order of court directing him as to the disposition to be made of moneys received for fines, and for filing bank certificates of deposit for fines paid to the credit of the Treasurer of the United States.

THIS was a petition by Kurtz, who was clerk and commissioner of the Circuit Court for the Eastern District of Wisconsin, for fees alleged to have been earned by him in both capacities.

The case resulted in the allowance of a large number of disputed items, and a final judgment in favor of the petitioner in the sum of $165.10. The government appealed, and

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