In re Waller

49 F. 271, 1892 U.S. Dist. LEXIS 24

• Court: District Court, W.D. South Carolina
• Decided: February 12, 1892
• Status: Published

Opinion

Simonton, District Judge.

Lewis Waller, styling himself deputy-pOstmaster at Greenwood, S. C., is attending this court as a witness for á defendant. This defendant, being unable to pay his witnesses, obtained an order under section 878, Rev. St., and his witnesses, among them Waller, were, .summoned, and will be paid by the United States. Waller, being about to be discharged, claims the usual mileage and per diem,'of witnesses. Were he an officer of the United States, and summoned, on behalf of the government, he would be entitled only “to his necessary expenses, stated in items, and sworn to, in going, returning, and attendance on the court. ” Rev. St. § 850. The same rule would be observed when an officer of the United States is summoned, and attends as a witness for the defendant, at the expense of the United States. Section 878, Rev. St., after stating the conditions under which the court ma3 order witnesses to be summoned in behalf of an impecunious defendant, goes on: “In such case, the costs incurred by the process and fees of the witnesses shall be paid in the same manner that similar costs and lees are paid in case of witnesses subpoenaed in behalf of the United States.” If he would be paid similar costs and fees as he would have secured had h'e been subpoenaed in behalf of the United States, he would get only his actual expenses. But this man calls himself deputy-postmaster. No such office'is provided for in the acts of congress. It appears that the postmaster at Greenwood gets a fixed salary, out of which he pays such clerks as he may appoint. He need not appoint any. Under these circumstances, Waller cannot be called an officer of the United States. U. S. v. Mouat, 124 U. S. 303, 8 Sup. Ct. Rep. 505. Let him have the mileage and per diem of a witness, under section 848, Rev. St.