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ring the case to the referee indicated by the parties, and directing him to hear and determine all the issues thereof. It thereupon becomes the duty of the referee to hear the parties, and then to decide the controversy and make a report to the court. The report may be special, setting forth the details of the evidence upon which it is based, or it may be general, giving only the conclusions to which that evidence carried the mind of the referee. To that report, either party may except in writing, and upon the hearing of those exceptions, the court may adopt or reject the report and enter judgment accordingly, or it may recommit the report to the referee with further directions.'

Such is substantially the outline of the trial by referee, which is delineated in the decision just cited. Inasmuch as that form of trial is not provided for by any United States statute, its details are regulated by the laws of the particular State in which such a trial is had.' Recourse must therefore be had to those laws for sundry points of information relevant to the methods of taking testimony before referees; the time when referees' reports must be made ; the weight attached to such reports on issues of fact; and the proper practice by means of which to secure the judgment of the court upon reviewable points.

$ 542. Judgments follow verdicts of juries, findings of judges, or reports of referees; unless those verdicts are set aside, those findings reconsidered and modified, or those reports rejected or recommitted. It is not the practice of the United States Circuit Courts, to require a rule for a judgment to be entered in any case. Judgments are entered by the clerk of the court under a special or general authority from the judge, and where so entered are binding as the act of the court.' The circumstances which justify courts in entering judgments in patent cases, for any sum above the amount of the verdict, finding, or report, but not exceeding three times the amount thereof, are explained in the chapter on damages. That the court has the same power in this particular, in cases where the damages are ascertained by the finding of the judge, or by the report of a referee, that it has in cases where they are ascertained by the verdict of a jury, is a point which has not been judicially decided, but is one which can hardly be doubted.

* Heckers v. Fowler,' 2 Wallace, 132, 1864.

? Revised Statutes, Sections 721

and 914.

3 Heckers v. Fowler, 2 Wallace, 132, 1864.

$ 543. Costs are recoverable by all plaintiffs who secure judgments for infringements of patents;' except where it appears on the trial that one or more of the claims of the letters patent are void for lack of being the subject of a patent, or for want of invention, or for want of novelty, and does not appear that the proper disclaimer was filed in the Patent Office before the commencement of the action; and except where part of the patents sued upon are not recovered upon.' There is no United States statute which provides that defendants shall recover costs in any patent case. The common law of England allowed no costs to either party in any action at law;' and the statutes of Gloucester,' which supplied that defect as to plaintiffs, did not supply it as to defendants. The statute of 23 Henry VIII., Chapter 15, enacted, however, that where, in actions on the case, the plaintiff is nonsuited after the appearance of the defendant; or where the verdict happens to pass, by lawful trial, against the plaintiff, the defendant shall have judgment to recover his costs against the plaintiff, and shall have such process and execution for the recovery of the same, as the plaintiff might have had against the defendant, in case the judgment had been given for the plaintiff. This statute of Henry VIII. having been enacted before the

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Revised Statutes, Section 4919; Merchant o. Lewis, 1 Bond, 172, 1857.

* Revised Statutes, Sections 973, 4917, and 4922.

* Adams o. Howard, 19 Fed. Rep. 319, 1884; Albany Steam Trap Co. c. Felthousen, 20 Fed. Rep. 640, 1884; Mann's Car Co. 0. Monarch

Car Ço. 34 Fed. Rep. 130, 1888;
Ligowski Clay Pigeon Co. 0. Clay
Bird Co. 34 Fed. Rep. 328, 1888;
National Machine Co. v. Brown, 36
Fed. Rep. 322, 1888; Schmid v. Mfg.
Co. 37 Fed. Rep. 348, 1889.

* Day o. Woodworth, 13 Howard, 372, 1851.

5 6 Edward I. Chapter I. 1278.

.

founding of the English colonies in America, and being suited to the condition of society in the United States, is in force in the United States courts to the same extent that it would be, if it were one of the rules of the common law.'

$ 544. All the items of costs which are taxable in the United States courts are specified in the United States statutes. The province of a taxing officer is therefore limited to comparing suggested items with the particulars of those statutes, and to taxing those, and only those, which he finds enumerated therein.' And no expenses, other than taxable costs, can be lawfully inserted in any cost bill. On most points, the statutes relevant to fees are so clear that they require no explanation; but in some particulars, they needed and have received judicial construction. Several such cases may be conveniently explained in a few of the sections which immediately follow.

$ 545. One attorney's docket fee is taxable in each case against the defeated party. There is no warrant for taxing

.' the unsuccessful party with a separate docket fee for each of his adversary's attorneys, nor with a separate docket fee for each term during which a case has been pending in court, nor for taxing any docket fee in favor of any attorney of the defeated party. Neither is there any warrant for taxing an attorney's deposition fee in favor of any attorney of the beaten party, or in favor of more than one attorney of the party which prevails in the action. And taxable attorney's fees are taxed in favor of clients to help them pay their attorneys, and not in favor of attorneys as extra compensation.'

1

Hathaway o. Roach, 2 Woodbury & Minot, 69, 1846; Bunker 0. Stevens, 26 Fed. Rep. 249, 1885.

4 Parks v. Booth, 102 U. S. 106, 1880.

? Revised Statutes, 823, 983; The Bal more, 8 Wallace, 392, 1869; Lyell 0. Miller, 6 McLean, 422, 1855; Wooster 0. Handy, 23 Fed. Rep. 60, 1885.

3 Dedekam o. Vose, 3 Blatch. 153,

5 Dedekam 0. Vose, 3 Blatch. 153, 1853; Troy Iron & Nail Factory e. Corning, 7 Blatch. 17, 1869; Parker 0. Bigler, 1 Fisher, 285, 1857.

6 Revised Statutes, Section 894.

1 Celluloid Mfg. Co. o. Chandler, 27 Fed. Rep. 9, 1886.

$ 546. The fees of the clerk of the court are in general taxable against the defeated party ; but several of the items to which he is entitled, are not so taxable, but are to be paid by the party for which he rendered the services to which they refer. Among these items, are copies of the record ordered by a party for his own use.' As the greater must include the less, this rule must apply also to copies of pleadings, depositions or other papers which form parts of the records of cases. The extent to which clerks

may make records, and charge defeated parties therefor, depends upon the rules of each particular court. In some districts, those rules appear to be made with a view to giving the clerks as much scope in this respect as can be supported by any argument; while in other courts, the practice is to charge parties with no more recording than the reasonable requirement of each case seems to demand.

$ 547. The fees of a commissioner or other magistrate, who takes a deposition in a case, are generally taxable against the defeated party, but if the deposition is not offered in evidence at the trial, those fees cannot be so taxed.” And reasoning by analogy from the taxation of attorneys' deposition fees, it should follow that magistrates' fees are not taxable on depositions which are offered in evidence, but are not admitted."

§ 548. Witness fees are generally taxable against the defeated party, whether the testimony was given orally in court or by deposition before a magistrate. But they are not so taxable when the testimony is taken by deposition and the deposition is not offered,' or if offered is not admitted in evidence.' Nor will a defeated party be taxed with the fees of more than three witnesses to one fact, unless the prevailing party satisfies the court by affidavit, that

'Caldwell o. Jackson, 7 Cranch, 277, 1812.

* Fry o. Yeaton, 1 Cranch's Circuit Court Reports, 550, 1809.

• Hathaway o. Roach, 2 Woodbury & Minot, 75, 1846.

4 Revised Statutes, Section 824. 6 Revised Statutes, Section 848.

6 Hathaway v. Roach, 2 Woodbury & Minot, 63, 1846.

Section 547 of this book.

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the additional witnesses were really necessary to adequately support his contention on that point.'

Whether any defeated party is taxable with the fees of any witness who testified on request, and without a subpæna, is an unsettled question. It has been held in the affirmative by Judge WOODRUFF and Judge Hall,' and in the negative by Justice McLEAN," Judge SAWYER,' and Judge LEAVITT. The ablest arguments on the two sides of the issue are those of Judge WOODRUFF and Judge SAWYER; and there is probably nothing to be said on the subject, that is not said in one or the other of the five cases cited. If it is necessary, in order to make witness fees taxable, that the witness should be served with a subpona, it is not necessary that he should be so served by any officer. Service by a private person is sufficient."

Witness fees are taxable in favor of a defendant, though his witnesses are not examined, because the action is not prosecuted ; and where witnesses attend more than once at the same term, because of a stipulated postponement of the trial; their fees are to be taxed as for continuous attendance during the interim, and not as for repeated journeys from their homes. Witnesses from a distance are entitled to fees for Sunday, where they are detained over that day.'

$ 549. The taxation of costs may properly be made at the time the judgment is entered, and that is the course which best secures the rights of the parties. But a blank

a may be left in the judgment for that purpose, and may be

, filled by a taxation made nunc pro tunc, after the judgment has been affirmed by the Supreme Court." Where the

I Bussard 0. Catalino, 2 Cranch's Circuit Court Reports, 421, 1823.

? Dennis o. Eddy, 12 Blatch. 196, 1874. 8 Cummings 0.

Plaster Co. 6 Blatch. 510, 1869.

+ Dreskill v. Parish, 5 McLean, 213, 1851.

5 Spaulding v. Tucker, 4 Fisher, 637, 1871.

6 Woodruff v. Barney, 2 Fisher, 244, 1862.

* Power 0. Semmes, 1 Cranch's Circuit Court Reports, 247, 1805.

8 Hathaway 0. Roach, 2 Woodbury & Minot, 63, 1846.

9 Schott o. Benson, 1 Blatch. 564, 1850.

10 Sizer o. Many, 16 Howard, 98, 1853.

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