Opinion of the Court.

fees as clerk, simply because he was aiding the jury commissioner in the performance of a new duty; and it seems to us that if the practice in that court requires the clerk to make a record of the names of jurors with their residences, or to do any other incidental work, in connection with the names of the jurors drawn, he is entitled to charge for that as for "making a record." It does not appear that a list of the jurors with their residences is strictly a part of the records of the court; but assuming that such list is required to be made by the order or the practice of the court, and posted up in the clerk's office, or preserved in the files, and no other method of compensating the clerk is provided, we think it may be properly charged for by the folio.

5. The final objection of the government is made to an item for entering an order of court, directing the clerk as to what disposition to make of the money received for fines in certain cases, and for filing thirteen certificates of deposit of the bank for fines paid in to the credit of the Treasurer of the United States. The claim of the government is that the statutory fee of one per cent. "for receiving, keeping and paying out money in pursuance of any statute, or order of court," covers all incidental services in this connection, including the entry of all orders for the payment of the money, and a filing of all receipts given by the persons to whom it is paid.

We think, however, the commission of one per cent. was intended to compensate the clerk for his services and responsibility in the receipt, the safe-keeping and the proper disbursement of the money, and was not intended to deprive him of fees to which he would have been entitled if the money had been kept and disbursed by another officer. As the charge seems to be equitable, and has the sanction, not only of the Court of Claims, but of several other courts, we are not disposed to disturb it. Goodrich v. United States, 42 Fed. Rep. 392, 394; Van Duzee v. United States, 48 Fed. Rep. 643, 646. It results that, for the error of the Court of Claims in respect to the first item, its judgment must be

Reversed, and the case remanded for a new judgment in conformity to this opinion.

Statement of the Case.

SALTONSTALL v. BIRTWELL.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST

CIRCUIT.

No. 257. Argued April 24, 27, 1896.-Decided October 26, 1896.

In 1888, when the goods were imported to recover back the duties paid upon which this action was brought, a right of action accrued to an importer if he paid the duties complained of in order to get possession of his merchandise, and if he made his protest, in the form required, within ten days after the ascertainment and liquidation of the duties.

IN October, 1888, Joseph Birtwell brought an action in the Circuit Court of the United States for the District of Massachusetts, against Leverett Saltonstall, collector of the customs for the revenue district of Boston, to recover excess of duties paid under protest on importations. The trial resulted in a judgment for Birtwell, which was brought on error to this court, where the same was reversed and the case was returned to the Circuit Court for a new trial. 150 U. S. 417.

In June, 1894, the case was again called for trial in the Circuit Court, and again resulted in a judgment for Birtwell. The case then went, by writ of error, to the United States Circuit Court of Appeals for the First Circuit, which court affirmed the judgment of the Circuit Court.

In April, 1895, the cause was removed into the Supreme Court by virtue of a writ of certiorari. The return to the writ set forth a stipulation between the counsel for the respective parties that the certified copy of the record of the cause in the Circuit Court of Appeals for the First Circuit, on file in the Supreme Court, should be treated as the return to the writ. That record discloses that, at the trial in the Circuit Court, the following proceedings took place:

"It is hereby agreed that trial by jury may be waived in the above-entitled case, and that the same may be tried and determined by the court without the intervention of a jury, as

Statement of the Case.

provided in sects. 649 and 700 of the Revised Statutes of the

United States.

"J. P. TUCKER,

"Attorney for Plaintiff.

"SHERMAN HOAR,

"Attorney for Defendant and United States Attorney.

"Issue being joined, this cause came on to be heard by the court, the Honorable Le Baron B. Colt, Circuit Judge, sitting.

"On October 2, 1894, at the time of the hearing the following admission on the part of the defendant is filed:

"It is hereby admitted that the 432 pieces of iron and the four pieces of iron-the proper classification of which for duty under the tariff act of March 3, 1883, is in question in the above-entitled case-are for the purposes of this case, and for this case alone, 'manufactures not specially enumerated or provided for in' said 'act, composed wholly of iron,' within the meaning of schedule C (paragraph 216, Treasury Compilation) of said act, and are subject to duty under said paragraph at the rate of forty-five per centum ad valorem.

"This admission as to the classification and nature of said. pieces of iron is made to apply to this case and to this case alone, and the United States and the defendant are not to be estopped or prejudiced thereby in any other case what

soever.

"SHERMAN HOAR,

"United States Attorney.

"At the same time the following motion for finding is filed by defendant:

"The defendant moves the court to rule that on all the evidence in this case, including the written admission of the defendant now on file in said case, the plaintiff has failed to prove his case, inasmuch as he has failed to show that he paid to the defendant under protest, and for the purpose of obtaining his merchandise, according to the provisions of law in

Statement of the Case.

force at the time of his importation, the duties he now seeks

to recover.

"And said defendant moves the court to rule that on all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his case, inasmuch as he has failed to show that he complied with the provisions of law relative to protest, in force at the time of his said importation.

"And said defendant moves the court to rule that on all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his case. "And the defendant moves also that the court find generally for him.

"SHERMAN HOAR,

"United States Attorney.

"Said motion is thereupon overruled by the court and judgment ordered to be entered for the plaintiff.

"On the thirteenth day of October the following findings of fact are filed by the court:

"The court finds the following facts:

"1. That on Feb. 27, 1888, the plaintiff, Joseph Birtwell, imported ex steamship 'Jan Breydel,' from a foreign country into the port of Boston, and entered at the custom-house at said port, certain iron, described in the entry as '432 pieces in manufactures of iron for the third floor of the Boston court-house,' drilled and fitted complete, as required by plan, and painted.

"2. That on the fourteenth day of March, 1888, the said plaintiff imported ex steamship 'Petre De Connick,' from a foreign country into port of Boston, and entered at the custom-house in said Boston, certain iron, described in the entry as '4 riveted girders in iron, complete framing of third floor of Boston court-house.'

"3. That the defendant, collector of said port of Boston, estimated the duties on both of said importations under the provision of schedule C of the tariff act of March 3, 1883, which reads as follows: 'Iron or steel beams, girders, joists,

Statement of the Case.

angles, channels, car-truck channels, TT, columns and posts, or parts or sections of columns and posts, deck and bulb beams, and building forms, together with all other structural shapes of iron or steel, one and one-fourth of one cent per pound.'

"4. That on Feb. 29, 1888, subsequently to said estimation of duties, for the purpose of obtaining said 432 pieces of iron, the plaintiff paid duties thereon at the rate exacted by the defendant, amounting to the sum of $2889.29.

"5. That on March 14, 1888, subsequently to said estimation of duties, for the purpose of obtaining said four pieces of iron, the plaintiff paid duties thereon at the rate exacted by the defendant, amounting to the sum of $166.75.

"6. That the plaintiff actually obtained said 432 pieces of iron and said four pieces of iron at the time when he paid the estimated duties thereon, respectively.

"7. That on the fourth day of April, 1888, the defendant collector liquidated the duties on said 432 pieces of iron at the same rate and under the same provisions of law at which he had estimated said duties; and on the tenth day of April, 1888, said collector liquidated the duties on said four pieces of iron at the same rate and under the same provisions of law at which he had estimated said duties.

"8. That on the fourth day of April, 1888, the plaintiff filed with the defendant collector a protest in writing, setting forth distinctly and specifically the grounds of his objection to the rate of duty at which the duties on said 432 pieces of iron had been liquidated by the defendant collector; and on the tenth day of April, 1888, the plaintiff filed with the defendant collector a protest in writing, setting forth distinctly and specifically the grounds of his objection to the rate of duty assessed by the collector upon said four pieces of iron, and in each of said protests the plaintiff claimed that said 432 pieces of iron and said four pieces of iron, respectively, were dutiable under that portion of schedule C of the tariff act of 1883, which is in the words following: 'Manufactures, articles or wares not specially enumerated or provided. for in this act, composed wholly or in part of iron, steel, cop