
    B. G. DUVAL v. THE UNITED STATES.
    [No. 15007.
    Decided February 6, 1888.]
    
      On the Proofs.
    
    A witness for the Government in a trial at New Orleans claims mileage from the place of his residence. The accounting officers allow him mileage from the place where he was employed as chief clerk of a United States marshal.
    I.The order of a Circuit Court directing the payment of a witness is authoritative upon the marshal and will protect him upon the auditing of his accounts, hut does not conclude the accounting officers or the Government in a suit where its liability to the witness may be brought in question. (Rev. Stat., 848,855.)
    II.A marshal’s clerk, receiving a salary, subpcenaed as a witness for the Government is entitled to his necessary expenses, but not to-“mileage or other compensation in addition to his salary ” within the meaning of Revised Statutes, § 850.
    III.Though a marshal’s clerk be appointed by him and the compensation be conditional and dependent upon the fees and emoluments of the office (Rev. Stat., § 841), the service, nevertheless, is rendered for the Government, the marshal being the appointing power, and the clerk an employé of the Government.
    
      The Reporters1 statement of the ease:
    The claimant was a witness for the Government in a trial at New Orleans in February, 1886. He seeks to recover mileage from Las Cruces, in New Mexico, a distance, going and returning, of 2,586 miles. The accounting officers allowed him mileage for the distance between San Antonio and New Orleans,, a distance, going and returning, of 1,154 miles. The claimant produces the order of the United States Circuit Court allowing him his mileage for 2,586 miles and directing the marshal to pay him; the defendants produce his receipt for $1,250, being for six months’ salary as chief clerk of the United States marshal for the western district of Texas; and the period for which he was so paid includes the time when he attended as a witness in New Orleans.
    The claimant also shows an actual residence at Las Cruces at the time when he was subpoenaed, such as would have entitled him to mileage between that place and New Orleans if he had been an ordinary witness holding no official relation with the Government.
    
      Mr. O. O. Lancaster for the claimant.
    
      Mr. Felix Brannigan (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Nott, J.,

delivered the opinion of the court:

The court is of the opinion that the order of the Circuit Court was authoritative upon the marshal (Eev. Stat., § 855), and if he had paid the witness would have protected him on the auditing of his accounts (§ 846), but that it did not otherwise conclude the accounting officers (id.), and does not conclude the Government in a suit wherein its liability to the witness may be brought in question. The order of a Circuit or District Court directing the payment of witnesses’ and jurors’ fees is a summary method for ascertaining and paying them, and a protection to the marshal who makes such payments, but is in no sense an adjudication and fixes no right, and is not therefore conclusive evidence for the claimant in this case.

The court is also of the opinion that the present case comes within that provision of the Revised Statutes (§ 850) which declares that “when any clerk or other officer of the United States is sent away from his place of business as a witness for the Government ” he may be paid “ his necessary expenses,” but no mileage or other compensation in addition to his salary shall in any case be allowed.” The theory of the statute manifestly is that where the Government is entitled to an officer’s time, the diversion of it from his official routine to attending in court as a witness in its behalf shall not entitle him to dual compensation.

Tbe court does not overlook the fact that a marshal’s clerk is appointed by him, and that his compensation is conditional and dependent upon the fees and emoluments of the marshal’s office (Rev. Stat., § 841) j but nevertheless the service is rendered for the Government, the expense is additional to the marshal’s compensation, and the money with which the clerk' is paid is the money of the Government, and would otherwise go into the Treasury. The marshal, therefore, is not the employer, but the appointing power, and his chief clerk is as much an employé of the Government as is the private secretary of the President.

The judgment of the court is that the°petifion be dismissed.  