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31, 1895. Among other items the Auditor made the following disallowance:

"All charges in excess of swearing each deputy marshal to his account (in duplicate) once, disallowed, as the Department does not require that a deputy be sworn to each case sepa. rately, but that he be sworn to his account as a whole, which covers each and every item included in his account for the quarter." See note.

The commissioner claims these fees under the decision in the case of United States v. Allred (155 U, S., 591). In that case there were allowed fees 6 for administering oaths to deputy marshals to verify their accounts of service as required by the Attorney-General and the accounting officers of the Treasury.” What is required by the Attorney-General and the accounting officers is one oath to the account presented by each deputy marshal to the marshal quarterly, and which accounts form part of the marshal's quarterly account for the fees earned by his office. More than one account quarterly from each deputy is not required, is unnecessary, and not in accordance with the methods in which the marshals are required to submit their accounts for settlement. Mr. Totten has evidently misunderstood the services required by the Attorney-General and the accounting officers of the Treasury, and for rendering which the commissioner was allowed fees in the Allred case. An examination of Mr. Totten's account shows that he claims these fees for swearing the deputy mar. shal to the amount of fees which he is entitled to receive for his services in each case brought before the commissioner.

The practice no doubt is for the deputy to make up a statement of the fees which he claims for his services in each particular case and to forward the same to the marshal; but the Attorney-General and the accounting officers have not required these statements to be separately sworn to. What they do require is an oath to the whole of the deputy marshal's quarterly account, which is made up from these different, separate statements. The action of the Auditor is therefore affirmed.


Comptroller. NOTE.-As the fees claimed were not for administering an oath to an actual account, but only to the reports upon which an account was made up, not even the fee for administering one oath was allowable; and such has been the practice.


A commissioner can be allowed only such fees in taking recognizances as

he wonld be entitled to receive if he followed the form of recognizance

prescribed by the State statute. A commissioner is entitled to fees for taking down the testimony of defend

ant's witnesses when it is required by the practice under the State statutes.


October 25, 1895. Mr. C. H. Harvey, a United States commissioner for the eastern district of Tennessee, appeals from the settlement of his account for the quarter ending March 31, 1895, wherein the the Auditor made certain disallowances.

“Item 2. Bond and acknowledgment disallowed. Code of Tennessee provides an undertaking,' for which one folio at 15 cents allowed, $6.35.”

Section 5983 of the Code of Tennessee provides: "The undertaking may be substantially in the following form: "STATE OF TENNESSEE, ?

- County: “We, A. B., C. D., and E. F., agree to pay the State of Tennessee - - dollars, unless the said A. B. appear at the next term of the circuit court of

county, in answer for the offense of larceny (or as the case inay be), and does not depart the court without leave.

“A. B. "C. D.

"E. F. " Approved.

"G. H. (name of officer).”

From this section it will appear that the form prescribed therein does not amount to more than one folio, and, further. more, no acknowledgment is required. As by section 1014, Revised Statutes, the procedure in criminal cases is to be according to the usual mode of process against offenders in the State in which the examination is had by the commissioner, it follows that the commissioner is only entitled to receive pay. ment for services required by the State practice. (United

States v. Ewing, 140 U.S., 142; Accounts of William B. Gilbert, Bowler's First Comp. Dec., 213.) · As a longer form of recognizance than that required by the provisions of section 5983 of the Code of Tennessee is not necessary, a commissioner is not entitled to more than the fee he would have received had he followed the form prescribed in said section. This is pecessarily so not only in principle, but as a result of the decision of the Court of Claims in the case of Zabriskie v. United States (29 C. Cls. R., 188), where it was held that in the absence of 6 certain peculiarities in the State practice, to which United States commissioners conform," two folios were sufficient for an original recognizance. Where the peculiarity of the State practice requires recognizances 'longer than two folios the amount is necessarily allowed by the accounting officers; but where, under the peculiarities of the State practice, as under section 5983 of the Code of Tennessee, a shorter form than two folios is prescribed, a charge of only one folio can be allowed.

No acknowledgment being required by the Code of Tennessee, none is necessary, and no fees therefor can be allowed.

2. “Testimony of defendants' witnesses disallowed. Order requires commissioner to take defendants' testimony; not defendants' witnesses."

The order of court referred to by the Auditor is as follows:

"They will take down the testimony and write it out in a plain and legible hand or with typewriter. They will take down the testimony of the defendant as other witnesses."

From a reading of the rule of court alone, the action of the Auditor was, no doubt, proper, but taken in connection with certain sections of the Code of Tennessee, which, under section 1014, United States Revised Statutes, must govern the practice before commissioners (United States v. Ewing, 140 U. S., 142), the action of the Auditor must be overruled and the amount claimed by the commissioner allowed. These sections are as follows:

“SEC. 5881. At the examination the magistrates shall exam. ine the witnesses for the prosecution, on oath, in the presence of the defendant and such other witnesses as may be produced by the defendant."

"Sec, 5883. If the defendant choose to make a statement, the magistrate shall proceed to take the same in writing, with ont oath, and the statement when written shall be read over to him and signed by him."

“SEC. 5885. After the waiver of the defendant of his right to make a statement, or after he has made it, his witnesses, if he produce any, may be sworn and examined.”

"SEC. 5887. The evidence of the witnesses examined shall be reduced to writing by the magistrate, or under his direction, and signed by the witnesses, respectively."

These sections clearly provide for the hearing of witnesses on behalf of the defendant and for writing out their testimony.




A practice established or directly sanctioned by the judge has the same

force and effect as a rule of court, and the clerk of the court acting thereunder is entitled to fees for the services rendered necessary by such practice.


October 25, 1895. In the settlement of the accounts of A. J. Van Duzee, clerk of the United States courts for the northern district of Iowa, for the quarter ending September 30, 1894, by the Auditor, certain disallowances were made.

1. “Charges for approving bonds disallowed as not covered by the fee bill.” In answer thereto, Mr. Van Duzee makes the following statement:

“I claim the fee for above charge as a 'making any record, certificate' provided in eighth clause of section 828, Revised Statutes. In Van Duzee v. United States (48 Fed. Rep., 613), the court says, in eleventh paragraph: The next item excepted to is the folio charge for the approval by the clerk of recognizances given in certain criminal cases. It is the duty of the clerk to approve these bonds, and it is the practice to evidence such approval by a written entry or certificates of approval upon the face or back of the bond. This is the making of an entry or certificate within the language of section 828 of the Revised Statutes, and the folio fee of 15 cents is chargeable therefor. And the circuit court of appeals for the eighth circuit affirmed such ruling and gave judgment therefor.” (United States v. Van Duzee, 52 Fed. Rep., 930.)

2. “Charges for certificates and seals to copies of indictments for defendants disallowed as in former statements.”

In explanation of this disallowance Mr. Van Duzee refers to the case of Van Duzee v. United States (48 Fed. Rep., 643), affirmed by the circuit court of appeals in 52 Fed. Rep., 930, in which case it was said (48 Fed. Rep., 649):

Exception is also taken to the charge for certificate and seal attached to the copy of the indictment furnished on demand to the defendant in the case of United States v. Parquette under the provisions of the standing rule of this court. It was the duty of the clerk to furnish the copy; and it is the usual rule that copies of all parts of the record, when furnished by the clerk, shall be duly certified to by the clerk. The charge is allowed.”

3. “ Charges for making and filing reports of per diem and mileage of witnesses and jurors disallowed as in former statements.” In explanation Mr. Van Duzee says:

“ In United States v. Van Duzee (52 Fed. Rep., 930) the circuit court of appeals for the eighth circuit say: The clerk is required to perform these services in carrying out the requirements of the rule adopted by the court regulating the manner in which proof of the amounts due jurors is to be forwarded. The court is also required to make an order directing the payment of the sums due jurors, and as a basis therefor the clerk is required to make a report to the court of the names of the jurors and the amounts due them; the clerk is entitled to pay therefor.'” (59 Fed. Rep., 440.)

From a reading of the two cases in the Forty-eighth and Fifty-ninth Federal Reporter, above referred to, in both of which cases the opinion was delivered by the judge of the district of which Mr. Van Duzee is the clerk, it is clear that it is the established practice of that district, sanctioned by the judge, as shown by the statements made by him in those opinions, to require of the clerk the acts for which he makes the charges disallowed by the Auditor. Where a practice is established by the direction of the court or with the court's sanction, such practice must have the same force and effect as a rule of court. (United States v. Converse, 63 Fed. Rep., 423; United States v. Morgan, 66 Fed. Rep., 279.) The principle of these two cases has already been adopted by the Comptroller in the case of Noble C. Butler (1 Comp. Dec., 230).

The accounting officers have heretofore not allowed these items, on the ground that the services were unnecessary, and particularly as certifying to the correctness of copies of indictments furnished to defendants by the clerk serves no purpose in informing the defendant that the copy is a correct one, for such information would be derived from the mere fact

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