
    EVETT D. NIX v. THE UNITED STATES.
    
      On the .claimants Appeals.
    
    [Not reported in C. Cls. R.;
    189 U. S. R., 199.]
    The court below filed the following findings of fact and conclusion of law:
    I.The claimant, Evett D. Nix, was United States marshal for the district of Oklahoma from July 1, 1893, to February 24, 1896, appointed, qualified, and acting.
    II.During said period the claimant, as such marshal, by his deputies, performed services and travel and incurred expenses in behalf of the United States, and his accounts therefor, verified by his oath and approved by the court in accordance with the law, were finally acted upon by the accounting officers of the Treasury Department, and part thereof was allowed and paid; but a part thereof, as more specifically set forth in Finding III, was disallowed, and no portion thereof has been paid to the claimant.
    III.Item 2. To travel, 1,153 miles, in going to serve warrants of arrest, at 6 cents per mile, $69.18, being for travel in excess of the distance from the place of arrest to the place of receiving writs. The travel charged for was in a new and unsettled Indian country, without post-offices, post routes, or section lines. The defendants were moving about from place to place to avoid arrest, and it was necessary to travel a circuitous route. The deputies had to find fordable places to cross the river to locate the defendants, there being no bridges. After arrest the defendants were taken by the most direct routes to commissioners for examination.
    Item 10. For attendance of the marshal at court, by deputy, for twenty days, at $5 per day, $100. It does not appear whether business was transacted in the court on said days, although the court was opened for business by order of the judge. It does not appear that the judge was present at court on any of these days.
    Item 12. This item was charged in claimant’s accounts as transportation of prisoners, deputies, and guards from the several places of arrest for hearing before the United States commissioners whose offices were nearest the places where the crimes for which the prisoners were arrested were committed. The number of miles charged in claimant’s accounts for this travel was 51,355 miles, at 10 cents a mile, amounting to $5,135.50.
    Those accounts were submitted to the United States district court for Oklahoma under the provisions of the act of February 22, 1875 (18 Stat., 333), and the said accounts, including this item, as above charged, were approved by that court.
    
      When the accounts so proved were submitted to the accounting officers, all 'the charges for travel included in that item were disallowed by them under the provisions of the sundry civil appropriation act of August 18, 1894 (28 Stat., 372-416), which made it the duty of the marshal to take the defendants before the nearest circuit court commissioner, or the nearest judicial officer having jurisdiction under existing laws, for a hearing, commitment, or taking bail for trial. Subsequently the accounting officers allowed and paid claimant of this item §27.
    After suit was brought in this court, the claimant’s deposition was taken in respect to this item, and he proved that, of his own knowledge, 11,433 miles were traveled in the transportation of said prisoners, deputies, and guards. As to the remainder of the travel he could not testify óf his own knowledge, because that travel had been performed by certain of his deputies who were not then ' in the Territory, and who, he supposed, were in Alaska or the Philippine Islands. The depositions of those deputies were not taken. No other evidence was offered by the claimant to establish the number of miles actually traveled than the approval of the (district court for Oklahoma and his own deposition subsequently taken, as above stated. If the approval of his account by said district court is competent evidence to establish the number of miles actually traveled, this court finds the ultimate fact that he traveled 51,355 miles. If such approval of the district court is incompetent to establish the number of miles actually traveled, this court finds that the number of miles so traveled was 11,433 in the transportation of prisoners, deputies, and guards, as before set forth.
    Item 16. For service of a capias and transportation (mileage) of a deputy, prisoner, and guard. The capias was issued by the clerk of the United States district court at Topeka, Kans., on an indictment found by the grand jury at Topeka. The capias was received by the claimant in Oklahoma City,- and was executed by arresting the prisoner named in the capias, who was transported to the United States district court at Wichita, Kans.
    The claimant charged 6 cents a mile for going 62 miles, from Oklahoma Oity to Perry, to serve the writ, §2 for the service of the writ, and 10 cents per mile each for the deputy, prisoner, and guard for 111 miles, §33.30, from Perry, Okla., to Wichita, Kans., and one meal for the prisoner, 75 cents, making a total of §39.77.
    Item 24. For actual expenses for transporting a prisoner from Springfield, Ohio, to the penitentiary at Brooklyn, N. Y., under a warrant of commitment. The warrant of commitment was issued at Oklahoma, and the marshal transported the prisoner on that warrant to Springfield, Ohio, where the prisoner was temporarily detained as a witness for the United States in a counterfeiting case. The prisoner having been discharged as a witness in that case at Springfield, the marshal continued his transportation from Springfield to New York City on the original warrant of commitment. The prisoner, with a deputy and guard, arrived in New York City too late for the prisoner to be received at the Brooklyn penitentiary on the day of arrival in New York, and he escaped from the custody of the deputy on the night of the same day while they were going to supper in the hotel where they were stopping. The marshal made every effort to retake the prisoner and failed, $90.50.
    
      Conclusion of law.
    
    TJpon the foregoing findings of fact the court decides, as a conclusion of law, that the claimant recover judgment of and from the United States in the sum of $108.95 on items 2 and 16 of Finding III.
    All other items disallowed.
    The Supreme Court disallowed item 2, Finding III, on tbe ground that it is without authority of law.
    The Supreme Court allowed item 10, Finding III, on the ground that it is the marshal’s duty to attend when the court is opened by order of the judge, whether the judge were present or not.
    The Supreme Court allowed item 12, Finding III, on the ground that the “act to provide a temporary government for the Territory of Oklahoma” (26 Stat. L., 81) was not repealed by the sundry civil appropriation act of August 18, 1894 (28 Stat. L., 372), and that the allowance of the accounts by the district judge casts the burden upon the Government of showing any error of fact in the account.
   Mr. Justice Brown

delivered the opinion of the Supreme Court March 2, 1903.  