CHAPTER XIII.

PRINTING BRIEFS.

§ 39. In Circuit Court.

40. In Circuit Court of Appeals.

41. In Supreme Court.

§ 39. In circuit court.

Case No. 1. Hussey v. Bradley (1864; N. D. N. Y.) 5 Blatchf. 210, Fed. Cas. No. 6,946a (in equity).

There was a charge for printing brief and supplemental brief that was rejected on the ground that there was no rule or order of court requiring the printing. The court suggested the propriety of adopting a rule covering the costs of printing, and such rule was afterwards adopted, as appears from Dennis v. Eddy, 12 Blatchf. 195, Fed. Cas. No. 3,793, and Hake v. Brown, 44 Fed. 734.

Case No. 2. Neff v. Pennoyer (1875; Or.) 3 Sawy. 335, Fed. Cas. No. 10,084 (at law).

An item of forty-five dollars for printing brief was objected to. Judge Deady held that, as the charge was taxable under the state practice, and as Rev. St. U. S. § 918,gave the court power to regulate the practice therein "as may be necessary or convenient for the advancement of justice, and the prevention of delays in proceedings," the order in the case requiring the parties to file briefs was a proper one, and the expense was a “necessary disbursement," within the rule of the state court,

and should be taxed. "If the expense was incurred under a lawful order of this court, it is a necessary disbursement, and ought to be taxed against the defendants." This case was cited with approval by Judge Blatchford in The Alice Tainter, 14 Blatchf. 225, Fed. Cas. No. 196, to the point that printing done under general rule or special order of the court was a necessary disbursement, and could properly be taxed. And again by Judge Benedict, in Simpson v. One Hundred and Ten Sticks of Hewn Timber, 7 Fed. 243, where it was said (page 246): "Expenses incurred under a lawful order of court may be taxed as part of the costs, and inserted as part of the judgment against the losing party. Neff v. Pennoyer, 3 Sawy. 336, Fed. Cas. No. 10.084."

Case No. 3. Sackett v. Smith (1891; S. D. N. Y.) 46 Fed. 39.

Judge Coxe said: "It seems to me that the item objected to was a proper disbursement, and should be taxed. It frequently happens that equity causes go to argument before the briefs are printed, and, where the argument proceeds in this manner without objection, there can be no reason for holding that the right to tax such disbursements is lost because the printing took place after the commencement of the argument."

Case No. 4. Gird v. California Oil Co. (1894; S. D. Cal.) 60 Fed. 1011.

The clerk taxed an item of forty dollars for printing brief. Ross, D. J., held that, as there was no rule of the circuit requiring briefs to be printed, and as there was no special order made in the case, the printing must be taken to have been voluntary, and the expense could not be taxed as costs.

Case No. 5. Kelly v. Springfield Ry. Co. (1897) 83 Fed. 183.

Items of $389.10 and $31.20 for printing brief and supplemental brief were rejected by the clerk, "in accordance with the general practice of the court,” and Judge Sage held that they were properly rejected, because "the cost of printing briefs is not taxable in this district" (page 185), and said (page 187): "In no case is the printing of the record and of briefs a taxable cost, except where there is a rule of court requiring the same to be printed, or where there is a stipulation to the same effect."

Case No. 6. Luxfer Prism Patents Co. v. Elkins (1900; E. D. Pa.) 99 Fed. 29 (in equity).

Judge McPherson said: "The expense of printing the brief is nowhere made by statute a part of the taxable costs, and there is no rule or practice in this circuit permitting it. Neither do I think it a desirable practice to establish, for it would enable the successful party to impose upon the other excessive charges for printing, or lead to constant disputes about the necessity or propriety of the matter printed. The policy in this state, with rare exceptions, has always been to require each party to a lawsuit to bear his own expenses, and, on the whole, the rule has worked well. It tends to restrain litigation, and it certainly prevents some abuses."

§ 40. In circuit court of appeals.

Rule 24 of the original rules of the circuit courts of appeals required briefs to be printed, but those rules are silent as to the expense of the printing of briefs.

Rule 15, § 3, of the admiralty rules of the second circuit, allows the expense of printing briefs to be taxed. See post, c. 21, "Costs in Circuit Court of Appeals." Case No. 1. Lee Injector Mfg. Co. v. Penberthy Injector Co. (1901; 6th Cir.) 48 C. C. A. 760, 109 Fed. 964.

The court said: "It has never been the practice of either the supreme court or this court to allow as costs the disbursements of counsel for printing briefs."

Case No. 2. Kursheedt Mfg. Co. v. Naday (1901; 2d Cir.) 48 C. C. A. 140, 108 Fed. 918.

The court said: "The rule in this court for many years has been not to allow the sum paid for printing briefs or arguments as part of the taxable costs or disbursements, except when specially provided for by rule. In this respect the practice conforms to that of the supreme court."

$ 41. In supreme court.

Rules 20 and 21 of the supreme court require arguments and briefs to be printed, but make no provision as to the expense.

Case No. 1. Ex parte Hughes (1885) 114 U. S. 548, 5 Sup. Ct. 1008.

This was a mandamus proceeding against an inferior court. On motion to tax costs, Waite, C. J., held: "It has never been the practice of this court, in cases brought before it under its appellate jurisdiction, to tax as costs disbursements by counsel or parties for printing briefs. We see no reason for adopting a different rule in cases within our original jurisdiction.”

CHAPTER XIV.

MASTER'S FEES ON ACCOUNTING, ETC.

42. How Master's Fees Determined.

(a) Equity Rules.

(b) Decisions.

43. Who Pays Master.

44. Master's Fees Between Parties.

45. Costs On Exceptions to Master's Report.

(a) Equity Rules.

(b) Decisions.

§ 42. How master's fees determined-(a) Equity rules.

Equity rule 74 provides that the party at whose instance a reference is made shall cause the matter to be presented to the master for a hearing on or before the next rule day. If he omits to do so, the adverse party shall be at liberty to proceed before the master "at the costs of the party procuring the reference."

Equity rule 82 provides that "the compensation to be allowed to every master in chancery for his services in any particular case shall be fixed by the circuit court in its discretion, having regard to all the circumstances thereof, and the compensation shall be charged upon and borne by such of the parties in the cause as the court shall direct."

§ 42b. Decisions.

Case No. 1. Doughty v. West, Bradley & Cary Mfg. Co. (1870; S. D. N. Y.) 8 Blatchf. 107, Fed. Cas. No. 4,030. The court (Woodruff, J.) said: "It is a little remark