DILLON, Circuit Judge.
“For receiving, keeping, and paying out money, in pursuance of any statute or order of court,” the clerk is entitled to “one per centum on the amount so received, kept, and paid.” Rev. St. § 82S. The one per cent thus allowed is for compensation to the clerk for the trouble and responsibility of actually receiving, keeping, and paying out money.
On the facts submitted, I am of opinion that the clerk is not entitled to a commission on moneys which, although ordered to be, were not, in fact, paid to him under the writs of mandamus.
If a party adjudged to pay money, instead *604of paying it to the party entitled, or his attorney of record, elects to pay the same to the clerk, he does the act which entitles the clerk to his commission for receiving, keeping, and paying out the money, and he must pay the commission allowed to the clerk therefor, and the same cannot be- taxed against the other party, as was held by Mr. Justice Miller, in Upton v. Tribilcock. (See note.) That case, in principle, covers the case submitted to me. The claim of the clerk is disallowed. There are no equitable circumstances presented in this case to vary the general rule. Ordered accordingly.
NOTE. Upton v. Tribilcock.—The case was thus: Judgments were rendered against defendants, and by stipulation of parties, all the judgments were to be satisfied upon the payment of $18,000, in three equal installments, “to the clerk of the circuit court of the United States, at Des Moines.” Under this stipulation defendants paid to the clerk $6,000, the first installment, from which the clerk deducted one per cent., his commission for receiving, keeping, and paying out the money. Plaintiff only gave credit for the amount received by Kim from the clerk, to-wit: the sum of $5,940. The other installments were paid, as they became due, to the plaintiff’s attorneys of record, and upon final payment plaintiff claimed that defendants should pay the $60 deducted by the clerk. The defendants denied their liability to pay the same.
The question was submitted to Mr. Justice Miller, who decided that defendants, notwithstanding the stipulation to pay to the clerk, were at liberty to pay to the plaintiff, or the plaintiff’s attorneys of record, and take their receipt therefor, and that in the event .of such payment the clerk would not be entitled to the commission of one per cent., but the defendants, having of their own election paid the $6,000 to the clerk, were liable for the clerk’s commission of one per cent, on the $6,000; and he held that the defendants must pay the clerk’s poundage ($60) on the sum which they actually paid in to the clerk, but were not liable for poundage on any other part of the amount of the judgment. [See 91 U.S. 45" court="SCOTUS" date_filed="1875-11-18" href="https://app.midpage.ai/document/upton-v-tribilcock-89145?utm_source=webapp" opinion_id="89145">91 U. S. 45.]