that it was handed to him by the clerk. The authentication of such certificate by the seal of the court seems absolutely unnecessary. But as these acts are required by the practice adopted by the court, allowance of the expense thereof comes within the principle of the decisions in the cases of Converse and Morgan, above referred to, and if the expense is an unnecessary charge against the Government the responsibility therefor rests not with the Comptroller, but with the court prescribing the practice prevailing in the northern district of Iowa.

For the reason above stated the action of the Auditor is overruled, and the above items disallowed by him will now be allowed.

R. B. BOWLER,

Comptroller.

IN RE APPEAL OF H. D. SPENCER, UNITED STATES COMMISSIONER FOR THE WESTERN DISTRICT

OF VIRGINIA.

For services rendered in poor convict cases under section 1042 a commissioner is entitled to no fees from the United States except the per diem of $5 allowed by section 847, Revised Statutes.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

October 25, 1895.

There was disallowed by the Auditor all fees for services in the discharge of poor convicts under section 1042, Revised Statutes, except the per diem fee of $5 prescribed by the last clause of section 847, Revised Statutes, which reads:

"For the examination and certificate in cases of applications for discharge of poor convicts imprisoned for nonpayment of a fine or fine and costs, five dollars a day for the time necessarily employed."

It has been the continuous practice of the accounting officers. to treat this per diem fee as the sole fee authorized by law to be charged against the Government in these cases, and that the folio fee for services rendered by a commissioner in hearing and deciding on criminal charges is not allowable in proceedings under section 1042. If such folio fees may be claimed by a commissioner there is nothing which makes them a charge. against the United States, for, unlike services rendered by a

commissioner in a criminal case, they are not rendered at the request of the Government, but at the request of the poor convict. The difference between these folio fees and the per diem fee is this: The per diem fees of all officers of the courts, including commissioners, are expenses which the United States bears in furnishing tribunals for the dispensation of justice.

No decision seems ever to have been rendered by any court upon this question, but in the last case in which the point was raised in the Court of Claims the decision was against the commissioner, no opinion, however, being delivered by the court.

The action of the Auditor is affirmed.

R. B. Bowler,

Comptroller.

IN RE ACCOUNTS OF B. F. HEGLER, CLERK UNITED STATES DISTRICT COURT FOR THE SECOND JUDICIAL DISTRICT OF OKLAHOMA TERRITORY.

A clerk of a court is not entitled to fees from the United States for services in habeas corpus proceedings rendered at the request of the person applying for the writ.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

October 25, 1895.

Mr. B. F. Hegler, clerk of the United States district court for the second judicial district of Oklahoma Territory, in his account for the half year ending June 30, 1894, claims the following fees in a habeas corpus proceeding:

In the original settlement these fees were suspended for further information.

Upon explanation it appears that the proceeding was one upon a writ of habeas corpus, the writ being sued out by one Perry Puckett, who had been arrested by a United States deputy marshal on a charge of assault with intent to kill, and that on the hearing he was discharged. The writ was directed to the marshal of the district, in whose custody said Puckett

was.

The clerk claims the fees for the services rendered because he was compelled to render the same. It does not follow, however, that fees for such services are a proper charge against the United States. The services were not rendered at the request of the United States, but at the request of Puckett, and it is not seen how the United States can be properly charged with the fees for the services rendered by the clerk.

In criminal cases instituted by the Government the fees for services rendered at the request of the Government are payable by the Government, as are the fees in cases rendered at the request of private parties; but this habeas corpus proceeding was not instituted by the Government, and the services were all rendered at the request of the party suing out the writ; the Government is therefore not liable for the fees. The items will be disallowed.

R. B. BOWLER,
Comptroller.

IN RE APPEAL OF A. D. BROOKS, CLERK OF THE DISTRICT COURT FOR THE EASTERN DISTRICT

OF TEXAS.

For services rendered on behalf of the defendant in a criminal case, other than those performed under section 878, Revised Statutes, a clerk of a United States court is not entitled to fees from the Government.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

October 25, 1895.

Mr. A. D. Brooks, clerk of the district court for the eastern district of Texas, appeals from the settlement by the Auditor of his account for the quarter ending December 31, 1894, in which the following disallowance was made:

"Charges for filing motion for a new trial disallowed. Defendant's costs, and United States not liable, 60 cents."

In answer the clerk says:

"I know of no law authorizing the clerk to either exact the pay of the defendant in a criminal cause or to refuse to perform the service."

Admitting the correctness of the clerk's statement, which, however, it is not necessary to decide, it does not follow that the United States would be chargeable for the fees for this service, which clearly was one on behalf of the defendant. Sec

tion 878, Revised Statutes, provides that the costs incurred by the process necessary to obtain the witnesses for an indigent defendant in criminal cases and the fees of such witnesses shall be paid by the United States. The express provision that these particular expenses should be paid by the Government indicates an intention upon the part of Congress that other expenses properly chargeable to a defendant shall not be paid by the Government.

The action of the Auditor in making the above disallowance is therefore affirmed.

R. B. BOWLER,
Comptroller.

IN RE APPEAL OF L. M. TOTTEN, UNITED STATES COMMISSIONER FOR THE WESTERN DISTRICT OF

NORTH CAROLINA.

In the absence of evidence that the discretion of a commissioner in granting continuances has been abused, he is entitled to a per diem fee for each day upon which he was engaged in hearing and deciding on criminal charges, if his account therefor is approved by the court. TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,
October 25, 1895.

Mr. L. M. Totten, a United States commissioner for the western district of North Carolina, appeals from the settlement by the Auditor of his account for the quarter ending September 30, 1894. Among the items disallowed by the Auditor were certain per diem charges in cases where contin. uances had been granted by the commissioner. It appears that the district attorney in presenting the accounts of the commissioner for allowance by the court, under the provisions of the act of February 22, 1875 (18 Stat., 333), recommended that these items be disallowed, which recommendation, however, was not followed by the court, for the account of the commissioner was approved as rendered. It was held in United States v. Jones (134 U. S., 483) and United States v. Ewing (140 U. S., 142) that a commissioner acting in good faith was invested with a discretionary power to suspend the hearing of a case where, in his judgment, a proper regard for the interest of justice required it. In the absence of an abuse of this discretionary power it is clear that a commissioner is entitled to per diem charges for all days upon which he hears

a case, although the only action taken is to continue the case to another day. Whether the discretion with which the commissioner is invested is abused is a question of fact to be determined in each particular case; but, as held in United States v. Jones (134 U. S., 483), when an account is approved by the court under the provisions of the act of. February 22, 1875, such approval is—

"prima facie evidence of the correctness of the items of that account; and in the absence of clear and unequivocal proof of mistake on the part of the court should be conclusive."

In the absence of other information than the opinion of the district attorney that the continuances were not necessary, which opinion was overruled by the action of the court, these per diems must be allowed.

R. B. BOWLER,
Comptroller.

IN RE APPEAL OF G. G. EAVES, UNITED STATES COMMISSIONER FOR THE WESTERN DISTRICT OF NORTH CAROLINA.

The accounting officers of the Treasury have no jurisdiction to consider items in a fee account of an officer of a United States court unless such items are approved by the court as required by the act of February 22, 1875.

Where the court does not approve a commissioner's per diems for days to which he had continued cases on trial before him, no fees can be allowed for services rendered necessary by and incident to such continuances.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

October 25, 1895.

Mr. G. G. Eaves, a United States commissioner for the western district of North Carolina, appeals from the settlement by the Auditor of his account for the quarter ending September 30, 1894.

1. Among the items disallowed by the Auditor were charges for certain per diems as disallowed by the court. It appears that in all these cases the per diems charged for by the commissioner were for continuances; that the district attorney took exception to the number of continuances as unnecessary, and in the approval of the accounts of the commissioner by the court the amount of these per diems was not allowed by the court. Under the provisions of the act of February 22, 1875