"The following items in suit No. 1, for copies of pa

pers, were disallowed:

(1) Copy deposition in Magic Ruffler Case...

$ 1.25

(2) Copy deposition Wooster, (from Gutman)

5.70

(3) Copy testimony Asa Wilmot...

14.60

(4) Certificate of loss of deposition and copy deposition (Gutman) ....

3.60

(5) Copy opinion

3.00

103.50

(7) Copy testimony in interference, Robjohn v. Pipo....

47.50

(6) Stenographer's minutes of argument and copy..

"The following items in suit No. 2, for copies of pa

"The following items in suit No. 9, for copies of papers, were disallowed:

(13) Copy deposition Wooster, from Gutman. (14) Copy of part of evidence before master.

$5.34 4.80

"Item 1 was obtained to be used in opposing a motion for a preliminary injunction. Items 2, 8, 9, 10, 11, 12, 13, and 14 were for copies of testimony taken on behalf of the plaintiff, either in chief or before the master, the copies being procured by the defendant so as to be informed of the contents, and to be prepared to meet the evidence. Item 3 was for a copy of a deposition of a person, obtained for use on a motion made in suit No. 1, by the defendant, to open the proofs therein, and allow the deposition of that person to be taken as a witness in suit No. 1, the object of procuring the copy being to show the relevancy of the evidence. Item 4 was a certificate from the examiner as to the loss of the deposition of a witness, taken in suit No. 1, and a copy

of a second deposition of the same witness, taken in suit No. 1, the certificate and copy being obtained for use on a motion in reference to the lost deposition. Item 5 was for a copy of the opinion of the court given on the decision in favor of the plaintiff on the first hearing in suit No. 1, the copy being obtained for use by the defendant in settling the decree on that decision. Item 6: At the first hearing in suit No. 1, the defendant had no brief prepared, and the hearing proceeded, with leave to the defendant to send in afterwards a printed argument. To enable him to do this, he employed a stenographer to take down the oral argument for the defendant. Item 7 was for a copy from the files of the patent office of the testimony in an interference case. Accompanying the motion for a rehearing in suit No. 1, there was a motion by the defendant for leave to put in evidence the interference testimony, and such copy was part of the moving papers on that motion. The motion was not granted.

"The provision of section 983 is that lawful fees for exemplifications, and copies of papers necessarily obtained for use on trials, in cases where, by law, costs are recoverable in favor of the prevailing party, shall be taxed,' and 'be included in' the judgment or decree against the losing party.' The papers must be not only for use ‘on trials,' or, as the act of 1853 says, 'on trial,' -that is, such trials and final hearings as are elsewhere spoken of (for this provision came from the act of 1853, and must be interpreted in the light of the other provisions of that act),-but the language implies that the copies must have been actually used on

or in the trial or final hearing, or, at least, obtained for such use under a rule or an order or a stipulation, and the fact of such use, or the existence of such rule or order or stipulation, is evidence that the copy was 'nec-. essarily obtained for use.' As section 983 relates to exemplifications and copies of papers, it covers that subject, and excludes all of that class which are not there provided for. It excludes papers used on interlocutory or preliminary or incidental motions or hearings. Copies of papers in the suit, obtained from the clerk, and otherwise properly taxable, are included in the provision in section 983 for taxing 'the bill of fees of the clerk.' In these cases the plaintiff did not object to certified copies from the clerk of orders in the suits, required by the rules to be served.

"In Hathaway v. Roach, 2 Woodb. & M. 63, 74 Fed. Cas. No. 6,213, in 1846, in the circuit court for the district of Massachusetts, even before the act of 1853, Mr. Justice Woodbury disallowed a charge by the defendant for a copy of the plaintiff's patent, on the ground that it was not needed in order to be used as evidence by the defendant, but was wanted for preparation and argument.

"In Hussey v. Bradley, 5 Blatchf. 210, Fed. Cas. No. 6,946a, in 1864, in the circuit court for the northern district of New York, the expense of reporting for the court the argument on the final hearing was disallowed by Judge Hall (Mr. Justice Nelson concurring), because there was no agreement of the parties that the expense should be taxed.

"Under the foregoing views, all of the above fourteen items were properly disallowed."

CHAPTER VII.

MODELS.

Case No. 1. Hathaway v. Roach (1846) 2 Woodb. & M. 63, Fed. Cas. No. 6,213.

This was an action at law, and plaintiff was nonsuited. Mr. Justice Woodbury said: "The next objection is to the item of models of stoves procured and used by the defendant. If these were models of the stoves described in the plaintiff's patent, it is my opinion, contrary to that of the counsel for the defendant, that the plaintiff was not bound by any law to produce them. The defendant might then properly and usefully obtain them. They were likely to be beneficial in explaining the patent, and were competent evidence of its coincidence or difference, compared with other stoves, as they related to doings of the plaintiff himself on the subject of his patent. For such models the defendant ought, therefore, to be allowed a 'reasonable compensation.' This must be what it was actually worth to make them, and not, of course, what was in fact given for them, though that may be prima facie the standard. If other models are taxed, I do not think them proper items for the bill of costs, any more than the drawings of other patents procured, or the books which describe them, they all being rather arguments than proofs. Bailey v. Beaumont, 11 Moore, 384. This is the analogy in respect to maps and surveys of land, and the allowance for them, as those of the land in dis

pute, are only to be taxed by ordinary practice in some states, because such alone are evidence in the cause."

Case No. 2. Parker v. Bigler (1857) 1 Fish. Pat. Cas. 285, Fed. Cas. No. 10,726.

The court (Irwin, J.) had made an order appointing a mechanic to enter defendant's mill, take measurements, and make models of the wheels there used. This was done, and the expense taxed as costs. This item$36-came before Justice Grier on motion to retax. The court said it was contended that the act of 1853 related only to the fees of the officers there named, and did not define absolutely what expenses of trial may be recovered from the losing party as costs of suit, and hence that this charge was not excluded, and the expense for the models, being necessary for the information of the court and jury, should be taxed; and the court said: "This may be true in a court of chancery, where the decree may include any expenses which have been necessarily incurred in the suit for the information of the court, and in order to a just decision of the These may be imposed on either party, or both, as the conscience of the chancellor may dictate; yet, in courts of law, no such discretion is given to the court."

cause.

The court again referred to the statute, and to the allowance of "printers' " bills, and said he could "not see that carpenters' or tinkers' bills have the same favor, or that a model of a mill wheel can be called an 'exemplification or copy of a paper." He questioned the power of a court of law to make such order as had been made for the making of models and the inspection of the mill to obtain evidence and to put the expense on the defendant as costs.