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.
*104Tbe 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.