The presumption that every capias issued will be executed is undoubtedly correct, but this presumption does not extend to commitments under these writs. In this district, as in most if not all other jurisdictions where the offense is bailable, the amount of bail is fixed by the court before the writ issues, therefore the presumption seems to be that bail will be furnished, and in this these writs are different from mittimuses which are issued to commit only; so if a defendant arrested on a capias is committed, he is not committed because of the offense charged nor because the writ for his arrest was issued and executed, but because he failed to give bail, and not being a writ of commitment, per se, it can never become such except, perhaps, upon the contingency above indicated, viz: The failure to give bail as required by the court, and until that contingency arises there is no requirement of law for the copy. Now if there was no other way by which a defendant who fails to give bond after arrest on a capias or bench warrant could be committed, the argument of claimant that the copy of the capias is as necessary as the writ itself would be of much force; but such is not the case, as is abundantly shown by the two cases cited by claimant in his reply to the Attorney-General's request and by a decision of this office in Thompson's case (8 Comp. Dec., 414).

The question in the Erwin case was whether the clerk was entitled to fees for issuing mittimuses and for certified copies thereof for the jailer, in the cases of persons who had been arrested, some of them on bench warrants, the Government contending that mittimuses were unnecessary “because the defendants were in the custody of the marshal under process. The court however took a different view of it, and inter alia, said (486):

"If a prisoner is brought before the court in the custody of the marshal, on bench warrant or otherwise, before trial, and it becomes necessary to commit him to the custody of any particular jailer for the first time, a writ of commitment is necessary, setting forth the cause of the detention."

In the Clough case the only question was as to copies of "mittimus writs" issued by the clerk.

The questions decided in these two cases have long since ceased to be questions before the Department, and therefore they have no real bearing upon the question raised by the Attorney-General's request for this revision.

In Thompson's case, supra, after careful consideration it was held that under section 1015, Revised Statutes, United States commissioners had authority to commit, in default of bail, persons arrested on capiases and brought before them to give bail, and this principle has been recognized by the Court of Claims in numerous cases. This being the law, there is no good reason why defendants arrested on such writs and carried before commissioners in this district and fail to give bail could not or should not be committed by such commissioners.

Section 4142 of the Mississippi Code, cited by claimant, relates only to the right of the United States to use the jails of the State for the commitment of Federal prisoners; therefore there is nothing in it or in section 1028, Revised Statutes, which militates against this conclusion.

I have been unable to find any decision of the Federal courts bearing upon the question, and in the absence of such decision, and of any statute authorizing and directing copies of capiases or bench warrants to be made at the time of their issue, I am constrained to hold that the law does not authorize the clerk to make copies, certified or otherwise, of capiases; that the practice set out herein is prejudicial to the interests of the Government because it is not necessary to the commitment of defendants who fail to give bail; and that the clerk is not entitled to fees for making such copies.

The action of the Auditor is overruled, and the charges allowed this clerk for certified copies of capiases, aggregating $227.50, will be disallowed on this revision.

PAY OF BAILIFFS AND COURT CRIERS FOR ATTENDANCE UPON COURT DURING THE ABSENCE OF THE JUDGE.

Bailiffs and court criers are entitled to their per diem compensation for attendance upon court while it is in session under order of the judge, regardless of the fact that there was no judge present.

(Comptroller Tracewell to S. F. Stahl, marshal, August 16, 1904.)

I have received your letters of the 15th ultimo and 2d instant, in which were presented the claim of George C. Faucette, a crier, and C. S. Stahl, bailiff, for attendance on court on an order of court in the absence of a judge.

It appears from the certificate of the clerk of the court (district) that it was opened on July 13, 14, 15, 19, 27, and 28, 1904, pursuant to said order, and that said crier was in attendance on all of said days, and the said bailiff on July 27 and 28.

"Wednesday, July 13.-Court opened by order of the judge, and judicial business was transacted, viz, filing petition and schedule in bankruptcy, case No. 158, John E. Mankin.

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Thursday, July 14.-Court opened. In case United States v. James Norvell, subpoena issued for witnesses residing outside of district upon application of United States district attorney.

"Friday, July 15.-Court opened by order of judge for judicial business, viz, filing commissioner's papers in case United States v. Will Martin et al.

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Thursday, July 19.-Receipt for money deposited by circuit clerk with the Assistant Treasurer of the United States, filed.

"Wednesday, July 27.-In re Strauss Mercantile CoBankruptcy. Strauss Mercantile Co. adjudicated bankrupts. Thursday, July 28.-In re Strauss Mercantile Co-Bankruptcy. Bankrupt files schedules."

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In the District Court of the United States, western district. of Arkansas, Fort Smith division.

In re The opening and adjourning court pending the absence of the presiding judge.

"It appearing to the court that the law requires both the admiralty and bankrupt courts to be kept open daily for the transaction of business; and it further appearing that business of a general character is transacted from day to day in the

court

"It is ordered, that pending the temporary absence of the presiding judge of this district the district court be open daily, and that the clerk be present, either in person or by deputy, and that a record of the same be entered upon the minutes of the court upon each of said days.

"Entered June 25, 1904."

Under this order of court the question you submit is one not free from doubt.

It was said in U. S. v. Pitman (147 U. S., 669):

"It is clearly the duty of the officers of the court to be present at the adjourned day and to obey the written order of

the judge with respect to any further adjournment, and there is no reason why they should not receive their per diems therefor as if the judge were actually present."

In United States v. Nix (189 U. S., 202–203), the court said:

"The fact that it did not appear whether business was transacted in court on these days, or whether the judge was present in court, was immaterial, and in view of the fact that court was opened for business by order of the judge

*

*

*

Where the court is opened for business by order of the judge, it is the duty of the marshal to attend, and there is no reason why he should not receive his per diem therefor as if the judge were actually present."

It is held in United States v. McCabe (122 Fed. Rep., 655) that bailiffs and criers are officers of the court and that they are entitled to their per diems for actual attendance when the court is adjourned, as provided by section 672 of the Revised Statutes.

It is true these adjourning orders were not made under said section, but is also true that the court was in session and not in vacation during the days covered by your question.

I see no necessity for their attendance on said days, but it would seem that regardless of this fact the law gives them a per diem for actual attendance when the court is in session, regardless of the fact that no judge was present, if the court was in session under the order of the judge.

Believing the above to be the law, I am forced to the conclusion that you are authorized to make the payments in question. I would suggest that when you come to submit your accounts for the approval of the judge, under the law, that you call his attention to the vouchers in question, and his action thereon will be a guide to the accounting officers in the future under an order similar to the one in question.

COMPENSATION TO A CONTRACTOR FOR DAMAGE OCCASIONED BY THE DESTRUCTION OF THE WORK PRIOR TO ITS COMPLETION.

Where a contractor agreed to construct a wharf and boathouse for a specified sum, he is not entitled to additional compensation for loss occasioned by the destruction of the work prior to its completion through the sliding into deeper water of the ledge upon which the building was being constructed.

(Decision by Comptroller Trucewell, August 17, 1904.)

The Auditor for the Treasury Department by settlement dated May 13, 1904, of the claim of R. J. B. Newcombe for loss of materials and labor in the construction of a wharf and boathouse on South Manitou Island, Mich., for the Life-Saving Service, disallowed the amount of the claim. By application filed July 25, 1904, the claimant requested a revision of his claim.

On July 11, 1902, the bid of the claimant to construct a wharf and boathouse at each of the life-saving stations at Sleeping Bear Point and South Manitou Island, Michigan, for the sum of $3,827.25, was accepted. No provision was made for partial payments. The building of the wharf and boathouse at South Manitou Island was begun on a site selected by the officers of the Government, and soundings and bearings were made to determine the exact location of the structure. The location was on a ledge in the bed of the lake composed of marl with a thin coating of sand and gravel on its surface. The contractor began work upon the structure on the location selected; piles were driven into the ledge and some work was done upon the superstructure, when a portion of the ledge slid off into deeper water, wrecking the structure and rendering the site unsuitable for the erection of the structure thereon. Subsequently another site was selected by the Government, and the wharf and boathouse was built thereon, for which the contractor has received payment.

The claim of the contractor is for the value of materials lost by this casualty, including freight paid thereon, cost of handling, traveling expenses of the contractor, and and iron lost from wharf," aggregating $1,366.22.

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The superintendent of construction estimates the value of the materials, etc., lost at $960.04.

The Auditor disallowed the amount claimed for the reasons that the work under the proposal to build the wharf and boathouse was paid for; that there is no law authorizing him to consider claims for loss or damage incurred in the execution of such work; and no appropriation available to pay the same, if allowed.

I do not concur with the Auditor in the opinion that there is no appropriation available to pay any amount found due