¶1delivered the opinion of the court:
¶2The claimant was appointed clerk of the Circuit Court of the United States for the southern district of Illinois in 1867, and has continuously held the office to the present time.
¶3From June 30, 1884, to January 4, 1885, the court was in session one hundred and sixty-one days. On forty-four of those days no business was transacted; the court merely met and adjourned. The judge and clerk were present. The claimant charged a fee of $5 for each of the one hundred and sixty-one days. In the Treasury Department he was allowed and paid $585 for one hundred and seventeen days. The claim for the other forty-four days, amounting to $220, was rejected for the reason that upon those days the court adjourned without transacting any business.
¶4This suit is brought to recover the fees which were disallowed for the forty-four days.
¶5The law of the case is presented in the following extract from section 828 of the Revised Statutes, which prescribes the fees of the clerks:
“ For traveling from the office of the clerk, &c., … # and $5 a day for his attendance on the court while actually in session.”
¶6Was the court “ actually in session,” within the meaning of this section, on those days in which it met, at the time and place appointed by law, but adjourned without transacting any business?
¶7Upon that question this court entertains no doubt. The court was not the less in actual session because no suitors appeared, nor because for any other reason the court, in its discretion, adjourned to a future day. The clerk’s fee became taxable when the court assembled and opened for business, regardless of the time of adjournment.
¶8In .this view of the case, it follows that the claimant was entitled to charge a fee of $5 for each of the forty-four days in question. And' it further appearing that the personal compensation of the claimant as clerk, including the amount of this claim, does not exceed that prescribed by section 839 of the Revised Statutes, judgment will be entered in his favor for $220. •