ERIE TELEGRA-!?H& TELEPHONE CO. 11. BENT.
409
uther creditors fmther. and that she stand equal with the other creditors as to future dividends; that the mortgage of the American House and the assignment of the Willey lease be set aside, and enjoining defendant perpetually, from setting up any claim receiver, and his thereto, and denying the prayer of the bill as to the residue, without costs to either party.
ERIE TELEGRAPH
&
TEI,EPHONE
Co.
V. BENT.
(Circuit Court, D. Massackusetls.
21,1889,)
ARBITHATION AND AWARD-ACTION OK AWARD-STATUTORY SUB)URSION.
No action at common law can be maintained on an award of arbitrators rendered under a statutory submission which does not comply with the statute.
At Law. Action on award. B. P. Butler, for plaintiff. G. F. Richardson and H. R. Bailey, for defendant. COVf, J. This is a suit at law, brought to enforce an alleged award in favor of the plaintiff against the defendant for the amount of certain fees and costs paid by the plaintifl'. The case was heard by the court, jmy trial having been waived. The underlying question to be determined is whether an award rendered un(ler a statutorv submission can award has been be enforced at common law in a case where the rejected by the court as not being in conformity with law. On December 31, 1885, the parties to this suit entered into an agreement to submit their demands to arbitration. It is clear from the record that this was a statutory submission. The attorney for the plaintiff corporation was authorized by the board of directors to execute a statute reference, and the agreement was for a statutory submission. This is fUi'ther shown by the supplemental agreement of June 4, 1886, which extended the time six months "within which the report of the arbitrators within named is to be filed in the superior court for the county of Middlesex." The whole form of proceeding shows that a i'tatutory submission was intended by the parties, and we do not understand that this position is seriously controverted by the plaintiff. The supreme court of the state rejected the award on the ground that it was not returned to the superior court within the time specified in the submission, and that the extension, though signed by the parties in writing, was invalid because not acknowledged before a justice of the peace. Under these circumstances it was held that the superior court had no jurisdiction to accept the award. Bent v. Telegraph Co., 144 Mass. 165, 10 N. E. Rep. 778. If the plaintiff in this action can recover it must be on the ground that .an action at common law can be mairltained upon an award made in pur.suanee of astatlitory sUbmissio,n, even though the submission is inop-
FEDERAL REPORTI!:R,: vol.
39.
erative by rEmson of anon-compliance witli! thestatutory·requirements. This question has been settled iii Massachusetts in the case of Deerfield v. A1"'1n8, 20 Pick. 480, where it was held thatlio actilnl at common law could be maintained upon a statutory submission which:was ineffectual undetthe statute. The grc\ul1d of the decision in that case was that an agreement for submission at common law was different from an agreement for submission under the statute, and that you cannot substitute one for the other without changing the contract which was entered into by the parties. The reasoning of the court in Deerfield v. Arms seems to me to be sound, and Lthink that decisi,on should be followed by this court. See, also, Sargent v. lIamliden, 3'2 Me. 78. Under the agreement of submission in the present cas() the arbitrators awarded that this defendant pay the costs and expenses of the submission, but, the award having been rejected by the supreme court of Massachusetts, I do not see how under the law any part of the award can be enforced in this court in any form of action. It follows thflt judgment should be entered for the defendant, and it is so ordered. Judgment for defendant.
JO.';ES
v.
UNITED STATES.
(District COU1'!, S. D. Aiftbama.
August 7, 1889.)
1.
CLERK
The clerk of the tTnited StlHes di,o;trict COl1l't is entitled to fees from the government for tiling separatfjly, in criminal cases, the process or copy of process, the bail-bond, and the rccoguizauce of witnesses sent up by the commissioner. OF SUBPrENAS.
PAPEHS IN CnUUNAI, CASES.
2.
The clerk may issue separate snbpoonas for witnesses in criminal cases when. necessary to secure their immediate attendan.ce. SAME-ACTION .FOIt FEES-SET-OFF-BuHIlEN 01' PROOF.
:8. 4,'
In a snit by an qfficer for fees nnder the act. of March 8,' 1887, (2·1 St. at Large. 505,) when the United 'States pleads any affirmative matter such as set-off the . bnrden is on them to prove it, lIud not ou the petitioner to disprove it. SAME-ApPROVAL OF OFFrCEHs' ACCOUNTS-FEES.
All pro<;eeding-s.c6nuected with the approvnlof officers': acconnts against the government, under, the act of Febrnary:.l2. 1875, (18 St. at Large, 333,) are for the convenience and at the expense of the United States, and inclnde the certified copy df order of approval indorsed on the original account sent to the treasury depariment as well as the original order entered on the minutes_ But there is no law or regulation for indorsing a certified copy of the order on the duplicate account retained in the clerk's office.
5·. SA1IE -COPIES OF ORDERS TO MARSHAL. Copies of orders to marShals to pay witnesses, jurors, special deputies, or supervisors, to be nsed as vouchers in his acconnts, are at the expense of the I:: ,United States, b.nt seals .snch orders are unnecessary, 6; SAME.-FrLING VOUCHERS. ' The clerk is entitled to fees from the United States for filing each separate voncher covered by the marshal's account with the government.
