#### EDWIN E. MARVIN v. THE UNITED STATES.

[Not reported in C. Cls. R., 212; U. S. R., 275.]

The court below in the case of *Owen*(41 C. Cls. E., 69) decided:

I.If a per diem can be allowed a clerk in equity and admiralty cases when a judge is not present, it should likewise be allowed in a bankruptcy court, which is also an always-open forum, whether the judge be personally present or not. The law in terms is the same in both cases.

II.When a court is in session for the transaction of business under §§ 574, 638, and 4973 of Revised Statutes, it is necessary for the clerk to be in attendance upon it whether business is actually transacted or whether the court is merely in readiness to transact business. ■

III. After the term of a court has been opened, the questions how long it shall remain open, to what day it shall be adjourned, and whether and how often it shall be opened for incidental business after the regular business of the term has been concluded, are matters which rest in the discretion of the judge.

IV. The Supreme Court has settled the law that the approval of a

clerk’s or commissioners’ account by a circuit court under the *Act 2%d February, 1875*(18 Stat. L., p. 333), is prima facie evidence of the correctness of the items, and that it would be an insupportable burden upon the officers to require them to produce affirmative evidence of every item when their accounts are audited.

And the court below, on the authority of the decision in Owen’s, rendered judgment for the claimant without an opinion.

The opinion of the Supreme Court, including the findings of fact and judgment of the court below, follow:

The United States, appellant, jAppeal from tlie Court Edwin E. Maevin. } Claims.

[February 1, 1909.]

Per Curiam :

This suit was brought to recover the sum of $535, “ for services rendered on behalf of the United States *594from June, 1900, to April 1, 1906, to wit: For attendance on court while actually in session during the terms, with the judge presiding and judicial business actually transacted in court, as provided by sections 574, 638, and 828, Revised Statutes, and Chapter II, section 2, bankruptcy act (30 Stat. L., 545), 107 days at $5.00 per day.”

The Court of Claims filed its findings of fact and conclusion of law April 20, 1908, as follows:

“ EINDINGS OF FACT.

“ I. During the times hereinafter mentioned the claimant, Edwin E. Marvin, was clerk of the District and Circuit Courts of the United States for the District of Connecticut.

“ II. For services on behalf of the United States during the period from July 1, 1900, to April 1, 1906, the claimant made up his supplemental accounts duly verified, and presented the same to the United States court for approval in the presence of the district attorney, and orders approving the same as being just and according to law were entered of record. Said accounts were then presented to the Attorney-General and the accounting officers of the Treasury Department for payment, and the payment of the items embraced in Finding III was refused.

“ III. Said items, the payment of which was so refused, were alleged to be for attendance on court while actually in session during the terms, or when business was transacted in court upon order of the judge, and were for 107 days at $5.00 per day, making $535.

“ The business so transacted was the reference by the clerk to the referee of voluntary petitions in bankruptcy filed during the absence of the judge from the district. No written orders were received by the clerk to open the court for the purpose of making said references, or for any other purpose; the judge was not personally present, and no writs, orders, or decrees were received from the judge sitting in chambers. The journal made by the claimant does not show that the court was open on any of the days for which per diems are claimed. The claimant, after learning of the decision of the Court of Claims in the *Owen case*(41 C. Cls. R., 69), went back in his district court journal and on the last day of every month over which his account extended interlined the days in such month upon which he had made references, merely stating them as days in which court business in bankruptcy proceedings was transacted.

*595“ Upon the foregoing findings of fact the court decided, as a conclusion of law, that, under the *Owen ease*(41 C. Cls. R., 69), and the *FinneTl case*(185 U S., 236), the claimant is entitled to a judgment for five hundred and thirty-five dollars ($535).”

And entered judgment without an opinion. (42 C. Cls., 542.)

The case was brought here by appeal on printed arguments.

a copy order of court approving the account referred to in Finding II, stating that it was' attached to the account of claimant now on file in the Court of Claims. That order contains, among other things, “ It is hereby ■ certified that upon each day for which a per diem is charged in this account the court was opened for business and court business transacted in bankruptcy matters as stated.”

on not set forth in the findings, and moreover that the paragraph is of no effect, “ because in the nature of a statement of a conclusion of law.”

The various applicable statutory in *United States*v. *Finnell*(185 U. S., 236), and in *Owen*v. *United States*(41 C. Cls., 69).

We concur with the Court of Claims that the two cases cited govern the disposition of this case, and, accordingly, affirm the judgment.