influerice.The affidavit in the case at bar is open' to the same ()bjeetion as that which was considered by JudgeEREwER. Itllll;lkes nothing apparent to the circuit court save that the defendant believe!,! he will be prejudiced, which, 'under the phraseology of the new terially changed as it is from the act of 1867 ,-is not sufficient. ON SECOND APPLICATION. (April 18,1889.) . LACOMBE, J. The defendant since the filing of decision on April 16th, has presented another affidavit made by himself, in 'which he says that from prejudice and local influence he will not be able to obtain justice in the supreme court of New York in New York county, or in any other state court to which he may under the laws of the state have the right on account of such prejudice or local influence to remove the cause, and adds" I state unqualifiedly that such prejudice and local influence actually exists so that a fair trial cannot be had in the state court." Being satisfied (as indicated in the memorandum filed on the 16th) that the act of 1887 effected a radical change in the procedure for removal, I fail to see that the affidavit now filed is sufficient to "make it appear" to this court that. defendant cannot obtain justice in the state especially in view of the provisions of section 987 of the New York Procedure, authorizing a change of the place of trial wherever there is reason to believe that an impartial trial cannot be had in the proper county. See Southworth v. Reid, 36 Fed. Rep. 453.
HURD ". GERE et ale , (Oircuit OO'U'I't, N. D. NetJJ York. April 15, 1889.)
Where a defendant, atter the time to answer has expired. procures an ll:ll parre orl,ler'extending his time. contrary to the practice lD the state court. and th&n files 'an application for removal. the application iBnot flIed. within the meaning of the removal act of March 3. "before the defendant is required by the laws of the state or the rules of the state court" to answer the complaint.
On Motion to Remand. Hamilton Ward, for plaintiff. Tracy,MacFarland, Boardman
Platt, for defendants.
WALLACE, J. The order of the state court, extending the time of the defendants to answer the complaint. having been made after the time to answer had expired, without notice to the plaintiff of the application, was doubtless irregular; but it was not void, although the court might have vacated it upon the application of the plaintjff, aud· it would then have beeu regarded as a nullity, ... Nevertheless, it would
violate the intent,: if· not the' literal terms, of the rthIioval 1'provisions of: the act of March· 8, 1887, to permit· a defendant,' after the time to answer a complaint has expired, to obtain an ex pa.rt6 order extending his -time, contrary to the practice of the state court, and then, by removing the cause, prevEl11t.the plaintiff from applying to the state court to vacate the order, and thus preclude him from an opportunity of having it treated as null. It shotlld be held, iIi such a'case, that the for removal was notfiled'ilbefore the defendant is required by the laws of the state or the rules of tbe state court" to answer the complaint., The motion to remand is granted.
, (Df8trict: Oov,'1't,N.1J.lziinota., 1.
Under ,Rev. St. U. 'S.§563, oonferriog.on the United States districtcour.w jurisdiction suit,S at CP/Ilmoo by the United States." etc., the district court has jurisdiction of a set-off interposed 'by' the United States to an actioi! by a district attorney to recover fees brought underactCong.
SET·OFF, :BY UNITED'STATES.
DISTRICT ATTORNEYS-COUNSEL FEES.
Under Rev. St. U. S. § 824, providing that where an indictment "is tried be· fore a jury, and a conviction is had, the district attorney may be allowed, in addition to the attorney's fee herein provided, a counsel fee in proportion to the importance and difficulty of the case, not exceeding $80, "the attorney is entitled to a counsel fee in a case where the defendant pleads not guilty, and the prosecution produces. its, evidence, even t,hough the defendant offers no evidence, or then consents 'to 8 verdi'ct of
SAME-REVISION OF ACCOUNTS BY TREASURY OFFICERS.
While Rev.St.' §'lJ46,'<ap.d act 1875; § I, seem to reserve to the accounting officers of the treasury a right of revision of the accounts of the district attorney after thllY been allowed. bytlle of reyiil7 ion must be eJ;ercisedwhen theacCQunt,comes before thQse officets for. action. upo;n it; and. after they have paslled the account as allowed bY the court, and it.has been paid. it,cannot afterwarQs be impeached', except for fraud or pal· pable I¢s,take." ·
At Law. 'Suit by Richard S. 'Tuthiil for fees as district: attorney. A. S. Bradley and Jesse A. Baldwin, for plaintiff. W. G. Ewing, U. S. Atty., for defendant.
BLODGETT, J.' 'This stlit'is bl'ougnt under the ,second section oithe act of March 3, 1887, entitled" An act to provide for the bringing ofsuits 'against thegbvernment of;theUnitediBtates." ltis'to recoverac'laim' made by the: plaintiff against the'United States for:ser'Vices rende.redby 'the 'plaintiff while acting as .district attorney for this district. It mittedthat plaintiff. was duly appointed, confirmed" and· commissioned. as United States districtrliatrict,and that he was acting as such from the 1st day:.oLJ.anuary to the, 1st. day of October, 1886.