
    WILLIAM ZABRISKIE v. THE UNITED STATES.
    [No. 17838.
    Decided March 19, 1891.]
    
      On the JProofs.
    
    This is a commissioner’s case, and relates to the fees which a commissioner is entitled to receive for drawing recognizances and whether the recognizances are unnecessarily prolix.
    I.The approval of an officer’s account by a Circuit or District Court merely determines the fact that the services were rendered. It is the duty of another tribunal into which the account is brought to pass upon the legality of every contested item; and this term “legality” extends to every question which can he raised concerning the right of the officer to recover.
    II.Papers for which a commissioner is paid per folio must not he unnecessarily prolix, and prolixity is a question for the court to determine.
    III.Two folios are sufficient for a recognizance except in a limited class of cases, “ where the accounting officers have generally allowed thrfee folios because of certain peculiarities in State practice. ”
    
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts of tbis case as found by tbe court:
    I. Tbe claimant, William Zabriskie, from tbe 23d day of July to tbe 29th of May, 1891, was a commissioner of tbe United States for tbe Territory of Utah.
    II. During sucb period be performed services in behalf of tbe United States, and his accounts therefor, duly verified by bis oath, were submitted to tbe United States court of tbe Territory of Utah, in tbe presence of tbe district attorney, and tbe court approved tbe same as just and in accordance .with law, and tbe orders of approvalwere duly entered of record., Claimant’s accounts, so approved, were presented to tbe accounting officers of tbe Treasury for allowance and payment. Certain of sucb accounts were allowed and others disallowed, as hereinafter set forth, and none of the disallowances have been paid.
    III. The items in the accounts disallowed are as follows:
    1. Drawing complaints, at 15 cents a folio, $15.30. At the rate of 20 cents a folio, allowed hy the Supreme Court, the complaints amount to $20.4.0, and they are so claimed. $20.40
    2. Entering returns on warrants and subpoenas, at 15 cents a folio. 10.80
    3. Over 2 folios for recognizances, disallowed. Claimant charged for 4 or 5 folios. 3.00
    4. Over 2 folios for order to pay witnesses, at 15 cents a folio. These orders were in duplicate, 2 folios for each order, being allowed. 13.05
    5. Separate orders to pay witnesses, 15 cents a folio. Only the amount of orders required by law were made, and they were made in one order when possible.. 2.70
    6. Charge for copy of process for court where there was no commitment. Claimant did not charge for copy of process except where defendant was held. The charge, even if defendant had not been held, would have been proper, if approved by court. The charge was for 5 folios in each case, at 10 cents a folio... 5.40
    7. Biit 1 folio allowed for drawing affidavits for attachment; 3 folios charged.45
    8. Per diems in cases of John Spencer and I. H. Tidsmell. 10.00
    9. All acknowledgments to recognizances. The acknowledgments, at the rate of 1 to a bond, amount to. 9.00
    10.All charges for copy of process to court disallowed, as unauthorized. The charge was made for sending up the originals. The copy was required by order of court. 7.65
    11,12. Per diem charges in three cases. 15.00
    13. Oaths of justification of sureties, 10 cents.. 1.60
    14. Copy of process, at 10 cents a folio. No charge was made for sending up originals. 1.30
    15. Case of Tidsmell. Swearing nine witnesses, suspended for explanations as to materiality of testimony.90
    16. Charge for oaths to witnesses as to their attendance.90
    17. Entering returns on process, 15 cents a folio, 60 cents; and duplicate report for the marshal to pay witnesses, 30 cents.90
    
      Mr. It. R. McMahon for tlie claimant.
    
      Mr. James H. Nixon (witb wbom was Mr. Assistant Attorney-General Dodge) for tbe defendants.
   Nott, J.,

delivered tbe opinion of tbe court:

In tbe case of United States v. Jones (134 U. S. 483) it was decided that “ tbe approval of a commissioner’s account by a circuit court ” is “ prima facie evidence of tbe correctness of the items of that account; and in the absence of clear and unequivocal proof of mistake on the part of the court it should be conclusive.” And in the case of Singleton (22 O. Cls. B., 118) that, u inasmuch as it is made the duty of circuit and district courts to determine whether a witness or a juror is entitled to be paid and to make the necessary orders therefor (Bev. Stat., sec. 855), those courts are necessarily invested with power and discretion to determine in what manner the facts shall be ascertained and the form in which every order shall be made.”

But those decisions, which recognize the authority of the circuit and district courts, likewise recognize its limitations. A court is the proper judge, and must necessarily be, of the form of its own orders3 the clerk being but its instrument to enter and record them. The approval of an officer’s account by a circuit or district court merely determines the fact as evidence prima facie that the services were rendered. Whenever the officer brings his account into another tribunal and institutes a suit upon it for the services which he has rendered or fees to which he is entitled, it is the duty of the tribunal to pass upon the legality of every item which is contested. And this term legality extends to. every question which can be raised concerning the right of the officer to recover.

Accordingly, it must be held that, while this court must accept the approval of an officer’s account by a circuit or district court as establishing the fact, in the absence of evidence to the contrary, that a commissioner took the recognizance of a defendant and his sureties or that he issued orders to a marshal for the payment of witnesses, all questions concerning the legality of the items and the necessity of the service are before the court.

In United States v. Barber (140 U. S., 177) the Supreme Court held with regard to complaiuts that they must not be unnecessarily prolix, and that prolixity is a question of fact in all cases.

In the numerous cases which have come before this court it appears that a great diversity exists in the form and length of the recognizances which commissioners take and of the orders for the payment of witnesses which they issue. Some of the latter are contained within a single folio of one hundred words. There arerecognizancesof less than onehundredandñfty words; others extend to five folios. After an examination of many forms in numerous cases the court is satisfied that two folios are sufficient for each of these papers, except iu a limited class of cases, where the accounting officers have generally allowed three folios because of certain peculiarities in the State practice, to which the United States commissioners conform. Accordingly, the charge in this case of four and five folios can not be sustained, and the papers must be held to be unnecessarily prolix.

The claimant is entitled to recover for other items of his account; and the judgment of the court is that he recover $77.05.  