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the toll gatherers, or other persons in their service or employment to prevent the same from passing such gate or turnpike, until such cart, wagon, or carriage of burden shall be drawn into the fixed or erected scales, at or near any such gate or turnpike, and the weight or burden drawn therein ascertained by weighing; and if the person or persons driving or having care or charge of any such cart, wagon, or other carriage of burden, shall refuse to drive the same into any such scales for the purpose aforesaid, the person or persons so refusing shall forfeit and pay the said president, directors and company, any sum not less than five dollars, nor more than eight dollars, to be recovered in the manner hereinafter mentioned.

Sec. 8. And be it further enacted, That no wagon or other carriage Regulations with four wheels, the breadth of whose wheels shall not be four inches, respecting

weights to be shall be drawn along the said road with a greater weight thereon than brought over three tons weight; that no such carriage, the breadth of whose wheels the road. shall not be seven inches, or being six inches or more, shall roll at least ten inches, shall be drawn along the said road with more than five tons ; that no such carriage, the breadth of whose wheels shall not be ten inches or more, or being less, shall not roll at least twelve inches, shall be drawn along the said road with more than eight tons; that no cart or carriage, with two wheels, the same breadth of wheels as the wagons aforesaid, shall be drawn along the said road with more than half the burden of weight aforesaid; and if any cart, wagon, or carriage of burden whatever, shall be drawn along the said road with a greater weight than is hereby allowed, the owner or owners of such carriage, if the excess of burden shall be three hundred weight or upwards, shall forfeit and pay four times the customary tolls, for the use of the company: Provided always, That it shall and may be lawful for the said company by their by-laws to alter any or all the regulations herein contained, respecting the burdens or carriages to be drawn over the said road, and to substitute other regulations, if upon experiment such alterations shall be found conducive to the public good: Provided nevertheless, That such regulations shall not lessen the burdens of carriages above described. Sec. 9. And be it further enacted, That the president and directors of

Correct ac the said company shall keep, or cause to be kept, fair and just accounts counts to be

kept of receipts of all moneys to be received by them from the said commissioners first and expendiherein named, and from the stockholders or subscribers to the said tures. undertaking, on account of their several subscriptions or shares, and of all moneys by them to be expended in the prosecution of their said work, and shall once at least in every year submit such accounts to a general meeting of the stockholders, until the said road shall be completed, and until the costs, charges, and expenses of effecting the same, shall be fully liquidated, paid, and discharged; and if upon such liquidation, or whenever the whole capital stock of the said company shall be nearly expended, it shall be found that the said capital stock will not be sufficient to complete the said road, according to the true intent and meaning of this act, it shall and may be lawful for the said stockholders, being convened according to the provisions of this act, or their by-laws and rules, to increase the amount to be paid on the shares from time to time, to such extent as shall be necessary to accomplish the work, and to demand and receive the increased amount so to be required on such shares in like manner, and under the like penalties as are herein before provided for the original payments, or as shall be provided by their by-laws. Particular acSec. 10. And be it further enacted, That the president and directors count of tolls

received to be shall also keep or cause to be kept, just and true accounts of all moneys kept. to be received by their collectors of tolls at the turnpike gate on the said road, and shall make and declare a half yearly dividend aforesaid, in some newspaper printed in the District of Columbia, and at the time and place when and where the same will be paid, and cause the same to be paid immediately.

VOL. III.-3

B 2

Corporation to keep the road in good repair.

Proviso.

a

Sec. 11. And be it further enacted, That it shall be the duty of the said corporation to keep the said road in good repair, and if by neglect of their said duty, the said corporation shall at any time suffer the said road to be out of repair, so as to be unsafe or inconvenient for passengers, the said corporation shall be liable to be presented for such neglect, before any court of competent jurisdiction, and upon conviction thereof, to pay the United States a penalty not exceeding one hundred dollars, at the discretion of court; and shall also be responsible for all damages which may be sustained by any person or persons, in consequence of such want of repair, to be recovered in an action of trespass on the case, in any court competent to try the same: Provided always, and it is further enacted, That whenever the net proceeds of tolls collected on said road, shall amount to a sum sufficient to reimburse the capital which shall be expended in the purchase of such land and making such roads, and twelve per cent interest per annum thereon, to be ascertained by the circuit court of the United States, in and for the District of Columbia, the same shall become a free road, and tolls shall be no longer collected thereon; and the said company shall annually make returns to said circuit court, of the amount of the tolls collected, and of their necessary expenses, so as to enable said circuit court to determine when said tolls shall cease.

Sec. 12. And be it further enacted, That if any person or persons riding in or driving any carriage of any kind, or leading, riding, or driving, any horses, sheep, hogs, or any kind of cattle whatever, on said road, shall pass through any private gate, bars, or fence, or over any private way or passage, or pass through any toll gate, under any pretended privilege or exemption to which he, she, or they, may not be entitled, or do any act or thing with intent to lessen or evade the tolls for passing through the gate established under this act, such person or persons, for every such offence, shall forfeit to the president and directors not less than three, nor more than ten dollars, to be recovered before any justice of the peace, with costs, in the same manner that small debts are recoverable: Provided, That it shall not be lawful for the company to ask, demand, or receive, from, or for persons living on or adjacent to the said road, who may have occasion to pass by said road upon the ordinary business relating to their farms, so far as the same may in its limits extend on the roads respectively, who shall not have any other convenient road or way by which they may pass from one part to another part thereof, any toll for passing on said turnpike.

APPROYED, July 13, 1813.

Penalties for evading payment of tolls.

Proviso.

STATUTE I.

July 16, 1813. Chap. XIII. An Act providing for the further defence of the ports and harbours

of the United States. President may

Be it enacted by the Senate and House of Representatives of the cause hulks to United States of America in Congress assembled, That the President greater security be, and he is hereby authorized, whenever the same shall be deemed of ports and necessary for the defence and security of any of the ports and harbours harbours.

of the United States, to cause to be hired or purchased, hulks, or other means of impediment to the entrance of the ships or vessels of the enemy, to be sunk with the consent of the proper authority of the state in which such port or harbour may be, and the same to be removed whenever in

his opinion it may be done with safety to such ports or harbours. Appropria- Sec. 2. And be it further enacted, That to defray any expense which tion.

may be incurred under this act, the sum of two hundred and fifty thousand dollars be, and the same is hereby appropriated, to be paid out of any moneys in the treasury not otherwise appropriated.

APPROVED, July 16, 1813.

STATUTE I. CHAP. XIV.–An Act concerning suits and costs in courts of the United States.(a) Be it enacted by the Senate and House of Representatives of the July 22, 1813.

. United States of America in Congress assembled, That whenever there shall be several actions or processes against persons who might legally actions, are be joined in one action or process, touching any demand or matter in

brought against

persons who dispute before a court of the United States or of the territories thercof, might be legally

When several

(a) Decisions in the Courts of the United States, on the lau of Costs. 1. The cost of printing a statement of the case for the Supreme Court, was refused to be allowed as part of the plaintiff's costs. Jennings et al. Plaintiffs in Error v. The Brig Perseverance, 3 Dall. 336; 1 Cond. Rep. 154.

2. On a writ of error to the High Court of Appeals of Maryland, the judgment of that court was reversed, and the judgment of the general court of Maryland was affirmed. The mandate of the Supreme Court was directed to the general court, and the costs of the Supreme Court and of the courts of Maryland were allowed to the plaintiff in error. Clarke, Plaintiff in Error v. Harwood, 3 Dall. 342; 1 Cond. Rep. 157.

3. Costs are not to be awarded against the United States. The United States v. Hooe et al. 3 Cranch, 73; 1 Cond. Rep. 458.

4. A judgment for costs, generally, includes all the costs belonging to the suit, whether prior or subsequent to the rendition of the judgment. If new costs accrue, the judgment opens to receive them. Peyton v. Brooke, 3 Cranch, 92; 1 Cond. Rep. 464.

5. Costs were allowed upon the dismission of a writ of error for want of jurisdiction; the original defendant being also defendant in error. Winchester v. Jackson et al. 3 Cranch, 514; 1 Cond. Rep. 612.

6. Where there appeared some ground for the prosecution, costs were refused. The United States t. La Vengeance, 3 Dall. 297; 1 Cond. Rep. 132.

7. Where a writ of error is dismissed in the Supreme Court for want of jurisdiction, costs are not allowed. Inglee v. Coolidge, 2 Wheat. 363; 4 Cond. Rep. 155.

8. Each party is liable to the clerk of the Supreme Court for the fees due to him from each party, respectively. Caldwell v. Jackson, 7 Cranch, 276; 2 Cond. Rep. 490.

9. A copy of the record is not a part of the taxable costs of suit, to be recovered by one party against the other ; but the party who requests the copy, must pay the clerk for it. Ibid.

10. It is undoubtedly a general rule, that no court can give a direct judgment against the United States for costs, in a suit to which they are a party, either on behalf of any suitor, or any officer of the government. But it by no means follows, from this, that they are not liable for their own costs. No direct suit can be maintained against the United States. But when an action is brought by the United States, to recover money in the hands of a party, who has a legal claim against them for costs, it would be a very rigid principle, to deny to him the right of setting up such claim in a court of justice, and turn him round to an application to Congress. If the right of the party is fixed by the existing law, there can be no necessity for an application to Congress, except for the purpose of remedy. And no such necessity can exist, when this right can properly be set up by way of defence to a suit by the United States. U. S. v. Ringgold et al. 8 Peters, 150.

11. The United States do not pay costs in any case. The U. S. v. Barker, 2 Wheat. 395; 4 Cond. Rep. 181.

12. No judgment or decrec can be rendered directly against the United States for costs and expenses. The Antelope, 12 Wheat. 546 ; 6 Cond. Rep. 629.

14. The fees and compensation to the marshal, where the government is a party to the suit, and his fees or compensation are chargeable to the United States, are to be paid out of the treasury, upon a certificate of the amount, to be made by the court, or one of the judges. lbid.

15. In cases of reversal, costs do not go of course; but in cases of affirmance they do. When a judgment is reversed for want of jurisdiction, it must be without costs. Montalet r. Murray, 4 Cranch, 46; 2 Cond. Rep. 19.

16. The court below, upon a mandamus, on reversal of its judgment, may award execution for the costs of the appellant in that court. Riddle et al. v. Mandeville et al. 6 Cranch, 86; 2 Cond. Rep. 307.

17. Where the court ordered the costs to be paid of a former ejectment brought by the plaintiffs in the names of other persons, but for their use, before the plaintiff could prosecute a second suit in his own name for the same land; this was not a judicial decision that the right of the plaintiffs in the first suit was the same with that of the plaintiffs in the second suit. It was perfectly consistent with the justice of the case, that when the plaintiffs sued the same defendant in their own name for the same land, that they should reimburse him for the past costs to which they had subjected him, before they should be permitted to proceed further. Rules of this kind are granted by the court to meet the justice and exigencies of cases as they occur; not depending solely on the interest which those who are subjected to such rules may have in the subject matter of suits which they bring and prosecute in the names of others; but on a variety of circumstances, which, in the exercise of a sound discretion, may furnish a proper ground for their interference. Henderson and Wife v. Griffin, 5 Peters, 151.

18. Where several claims had been filed by the district attorney, and, before any further proceedings in the cause, Congress remitted the forfeiture, on the payment of duties, costs, and charges : Held, that the district attorney of Massachusetts was entitled to seventeen dollars on each claim. The Francis, 1 Gallis. C. C. R. 453.

19. In taxing the costs in prize causes, where there are several claims, some of which are disposed of by a final decree of condemnation, while others are suspended by appeal, the practice is to tax the costs and expenses which have accrued, specially, upon each claim so disposed of, as a separate charge against the same, and to add thereto an average proportion of the general costs and expenses which have accrued in reference to all the claims in the cause. The Hiram and the Hero, 2 Gallis. C. C. R. 60.

20. In prize causes, the allowance or denial of costs rests in the discretion of the court; and where

sued in one ac- if judgment be given for the party pursuing the same, such party shall not tion, costs can thereon recover the costs of more than one

action or process, unless special only be recovered as in one.

cause for several actions or processes shall be satisfactorily shown on moCosts to be re- tion in open court. covered only in Sec. 2. Be it further enacted, That whenever proceedings shall be had one libel when

on several libels against any vessel and cargo which might legally be that is sufficient.

joined in one libel before a court of the United States or of the territo

the capture, though made in good faith, is in law adjudged tortious, the claimant is entitled by the general practice of the court to such costs as have necessarily arisen in the prosecution of his claim, unless he has been guilty of such misconduct as amounts to a forfeiture of such costs. The Ulpiano, i Mason, 91.

21. When a cause is removed from a state court to the circuit court, under the act of Congress, the plaintiff is entitled to recover his costs; although he obtains a verdict for less than five hundred dollars. Ellis v. Jarvis, 3 Mason, 457.

22. If a witness, recognised for the defendant, is marked on the indictment, and sent to the grand jury by the district attorney, the United States, on the acquittal of the prisoner, must pay the witness his costs. United States v. Coulter, C. C. U. S. of Pennsylvania, April, 1803.

23. It is within the discretion of the court to permit the defendant to file a new plea; but where the effect of it would be to put the plaintiff out of court, and the cause was instituted in consequence of the act of the defendant himself, and had been long at issue before the application was made, the court would not permit it to be done, unless the defendant would pay not only the costs incurred since the filing of his first plea, but the whole costs of the action. Anonymous, 2 Wash. C. C. R. 270.

24. Where the plaintiff prevails in the action, the court will not, in the exercise of their discretion, tax the costs against him, where he might naturally and fairly suppose he was entitled to recover more than five hundred dollars. Cottle v. Payne, 3 Day, 289.

25. Costs and expenses are not matters positively limited by law, but are allowed in the exercise of a sound discretion of the court; and no appeal lies from a mere decree respecting costs and expenses. Canter v. The American and Ocean Insurance Company, 3 Peters, 319.

26. In Virginia, if the first ca. sa. be returned non est, the second may include the costs of issuing both. Peyton v. Brooke, 3 Cranch, 92; 1 Cond. Rep. 464.

27. Costs will be allowed on the dismission of a writ of error for want of jurisdiction, if the original defendant be defendant in error. Winchester v. Jackson et al. 3 Cranch, 515; 1 Cond. Rep. 612.

28. A party who obtains a continuance of a cause, must pay the costs of the term. Lessee of Patton v. Blackwell, 2 Overt. Rep. 114.

29. The Supreme Court has no jurisdiction in a case in which the judges of the circuit court have divided in opinion, upon a motion for a rule to show cause why the taxation of the costs of the marshal on an execution should not be reversed. Bank of the United States v. Green and others, 6 Peters, 26.

30. The transcript of the record had been lodged by the plaintiffs in error with the clerk of the court on the 24th of October, 1835; who refused to file it or docket the cause, until the plaintiffs had given the fee bond in pursuance of the thirty-seventh rule of the court. The counsel for the plaintiffs in error moved to have the transcript filed and docketed; alleging they had done all the law required to be done in order to bring the case before the Supreme Court. On the part of the defendant in error, his counsel filed and read in open court certified copies of the writ of error, citation and appeal bond, and of the judgment of the circuit court; and having stated that the plaintiffs in error had failed to have the case docketed according to the thirtieth rule of the court, they moved to have the case docketed and dismissed. The court overruled the motion to docket and dismiss the cause; and also the motion to have the transcript filed, and the cause docketed without the fee bond being first given. These motions were overruled on the 18th of January, 1836; and the court allowed the plaintiffs in error until the 1st day of March following to give to the clerk the fee bond: on the failure so to give the same, the writ of error to be dismissed. Owings v. Tiernan, 10 Peters, 447.

31. If the court had jurisdiction of the cause, when the action was commenced, the repeal of the law which gave the jurisdiction, will not take away the plaintiff's right to costs. Walker v. Smith, 1 Wash. C. C. R. 202.

32. Where three members of the bar enter their appearance for the defendant, to suits instituted against him, and are all equally called upon, and act as the attorneys of the defendant, no warrant of attorney having been given by the defendant to either; the attorneys' fee in the bill of costs is to be equally divided among all who have acted in the case, and who have appeared to the suits. Hurst v. Durnell, 1 Wash. C. C. R. 438.

33. Query. If in an action for the violation of a patent, the plaintiff recover five hundred dollars damages, or the damages when trebled amount to that sum, the plaintiff is entitled to costs. Kneas v. The Schuylkill Bank, 4 Wash. C. C. R. 106.

34. The common law gave costs in no case ; and the statute of Gloucester gave them only where damages were recoverable at common law. Ibid.

35. If the defendant do not demand security for costs within a reasonable time, it shall not be a ground for a continuance, that such security has not been given when the cause is called for trial. Hawkins v. Wiltbank, 4 Wash. C. C. R. 285.

36. The clerk of the circuit court for the district of Pennsylvania cannot charge in the bill of costs any compensation for the travel and attendance of the successful party, none such being allowed in the supreme court of the state. But he ought to tax one dollar and twenty-five cents a day for the attendance of each witness, and five cents a mile for their travelling to and from the court. Sebring's Lessee v. Ward, 4 Wash. C. C. R. 546.

37. Costs are imposed on a party asking for an amendment of the pleadings. But in a case where, from the irregularity of the practice in the courts of Pennsylvania, the error requiring amendment arose, costs were not allowed. Lessee of Laning v. Dolph, 4 Wash. C. C. R. 630.

No more costs

tion

the

ries thereof, there shall not be allowed thereon more costs than on one libel, unless special cause for libelling the vessel and cargo severally shall be satisfactorily shown as aforesaid. And in proceedings on several libels or informations against any cargo or parts of cargo or merchandise than on one li

bel or informaseized as forfeited for the same cause, there shall not be allowed by the

for court more costs than would be lawful on one libel or information, what- same cause of ever may be the number of owners or consignees therein concerned :

forfeiture. but allowance may be made on one libel or information for the costs incidental to several claims: Provided, That in case of a claim of any Proviso. vessel or other property seized on behalf of the United States and libel- On a claim of led or informed against as forfeited under any of the laws thereof, if property, libel

projudgment shall pass in favour of the claimant, he shall be entitled to the perty is restorsame upon paying only his own costs.

cd, the claimant Sec. 3. And be it further enacted, That whenever causes of like shall only pay nature, or relative to the same question shall be pending before a court of the United States or of the territories thereof, it shall be lawful for the

Causes may court to make such orders and rules concerning proceedings therein as

be consolimay be conformable to the principles and usages belonging to courts for dated, to avoid avoiding unnecessary costs or delay in the administration of justice, and costs or delay. accordingly causes may be consolidated as to the court shall appear reasonable. And if any attorney, proctor, or other person admitted to Attorney manage and conduct causes in a court of the United States or of the proctor to pay territories thereof, shall appear to have multiplied the proceedings in any if proceedings cause before the court so as to increase costs unreasonably and vexa- have been multiously, such person may be required by order of court to satisfy any tiplied. excess of costs so incurred.

sonably. APPROVED, July 22, 1813.

or

excess of costs

unrea

38. The plaintiff having recovered at law, the court directed the costs of the bill of discovery, by which the plaintiffs at law were prevented recovering, should be paid by the defendants in the bill; they being plaintiffs at law. Lessce of Bowne v. Brown et al. 2 Wash. C. C. R. 271.

39. The clerk of the court is a competent judge of the amount of costs which can be recovered in an action; and money paid to him is in the safe keeping of the court, and subject to its disposal. Willings et al. v. Consequa, 1 Peters’ C. C. R. 301.

40. In a case of tort, several costs of travel, attendance, and attorney's fees will be allowed to the several defendants, whether the pleadings are joint or several. Crosby v. Folger, 1 Sumner’s Rep. 514.

41. In case of a claim on proceeds in the custody of the court, where other parties are entitled, no costs can be allowed beyond those for which there is a specific lien, and the actual charges of court. No attorney's fees can be allowed. The Jerusalem, 2 Gaļlis. 345.

42. Query. If a consul, who sues for a penalty, in his own name and person, but for the benefit of the United States, is liable for costs ? Levy v. Burley, 2 Sumner's C. C. R. 355.

43. After notice of trial, the defendant cannot move to put off the trial, until the costs of a former ejectment be paid, without notice that such a motion would be made; nor can it prevail under any circumstances, if the costs be demanded on an ejectment, which had been decided in the state court. Den v. Bacon & Sharp, 4 Wash. C. C. R. 578.

44. In an action for the violation of a patent right, the plaintiff having recovered a verdict for three cents damages, is not entitled to full costs under the 20th sec. of the judicial act of September 24th, 1789, ch. 20. Kneas v. The Schuylkill Bank, 4 Wash. C. C. R. 100.

45. Where the plaintiff, being a non-resident, has filed security for costs, conditioned to pay them, “ if the plaintiff does not prosecute his suit to effect, and does not pay the costs of the suit,” in case the plaintiff succeeds, the sureties are exonerated from the payment of any costs; but the plaintiff is responsible to the officers of the court for his own costs, and the court will enforce the payment of them by attachment. Lessee of Bowne v. Arbuncle, 1 Peters' C. C. R. 234.

Supreme Court, January Term, 1838.

Rule of Court No. 45 et seq. In all cases, where any suit shall be dismissed in the Supreme Court, except where the dismissal shall be for want of jurisdiction, costs shall be allowed for the defendant in error, or appellee, as the case may be, unless otherwise agreed by the parties.

In all cases of affirmances of any judgment or decree in the Supreme Court, costs shall be allowed to the defendant in error, or appellee, as the case may be, unless otherwise ordered by the court.

In all cases of reversals of any judgment or decree in the Supreme Court, except where the reversal shall be for want of jurisdiction, costs shall be allowed in the Supreme Court for the plaintiff in error, or appellant, as the case may be; unless otherwise ordered by the court.

Neither of the foregoing rules shall apply to cases where the United States are party ; but in such cases no costs shall be allowed in the Supreme Court for or against the United States.

When costs are allowed in the Supreme Court, it shall be the duty of the clerk to insert the amount thereof in the body of the mandate, or other proper process, sent to the court below; and annex to the same the bill of items taxed in detail.

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