111
was an agreement upon sufficient consideration, :ahd it/ must be held tO'have been an agreement to cancel the original contract and substitute for it the five new conftracts, for otherwise the purpose of the contracting parties to bring the claims within the jurisdiction ofa justice of the peace would have been defeated. Upon this ground district court, must be atlirmedwithout considering the decree of the other questil>ns argued by counsel. So ordered.
Coy Wiroult CoSTB-SoLIClTOR'S FEES.
t1.
(Jourt, D. MfU8achuaett8. August 3, 1882.)
Where in an equity case, before any decree is relldered, an o.-der dismlBSing the bill with costs is obtained, without notice to the defendant or hearing or consideration of the case by the court, the solicitor's fee of $20 will not be allowed. ' .
Appeal from the clerk's taxation of ,costs in a suit inequity allowing a docket fee of $20 to the eJefendant's. solicitor under these cir· cumstances: At the term at which the case was entered, the:parties by their solicitors, .and. thedef!3ndant filed a demurrer to the bill. After the case had been continued for several terms, the plaintiff caused this entry to 'be made upon the docket: "Bill dismissed by direction of complaina:t}t." The clerk stated his reasons for, the allowance, as follows: If I based my decision upon the practice of the, olerk's office, under which an attorney fee of $20 is taxed forthe prevailing party in every equity case disposed of by order of court, otherwIse thljoll upon agreement of parties. Previously to a decision by Justice Clifford, that wlJ,en an equity case is disposed of by agreement of patties' the prevailing party is' not entitled to an attorney fee, such fee was taxed in every equity case disposed of ; but sinoe that decision an attorney fee has.not been taxed in Bucb· oases as come s'trictly within Judge Clifford's decision, but has been tmced in every other equity case disposed of."
The matter was l'Iubmittea to the oourt upon ,the report of the clerk, and the written objections'filed by the pla.intiff tothe allowance (It this fee, without further argument. Oau8ten Browne, for plaintiff. R. M. Morse, Jr., and R. Stone; Jr., for defendant.
112
FEDERAL REPORTER.
Before GRAY and LOWELL, JJ. GRAY, Justice. The fee bill allows to the attorney of a prevailing party, in cases on the common-law side of the court, a docket fee of $20 on a trial by a jury or before referees; of $10, when judgment is entered without a jury; and of $5 when the case is discontinued. And the only provision that it makes for a similar fee to solicitors in equity, or to proctors in admiralty, is of the largest of these sums "on a final hearing," which it classes with a trial by a jury, or before referees at common law. Rev. St. §§ 823, 824. We are of opinion that upon the face of the statute the intention of the legislature is manifest that it is only where some question of law or fact, involved in or leading, to the final disposition actually or at least presented to the made of the case, bfl,s b,een consideration of the court, that there can be said to have been a final hearing which warrants the taxation of a solicitor's or proctor's fee 'of $20; as, for instance; where the' court, on motion and argument, dismisses for irregularity ,an appeal from the district court, as,in: the case before Mr. Justice Nelson of Hayford v. Griffith, 3 BIatchf. C. C. 79, or where the plaintiff discontinues, after the court has substantially decided the merits of the case, either by an opinion expressed at the hearing upon the merits, as in the case of The Bay Oity, before Judge Brown, 3 FED. REP. 47', or by a previous interlocutory decree, as in Goodyear Dental Vulcanite 00. v. Osgood, decided by Judge ley in February, 1878. In Howe v. Shumway, October, 1865, Mr. Justice Clifford, disregarding the practice of the clerk's office, held that where by agreement of the parties a bill in equity was dismissed with costs, no solicitor's fee should be allowed. By the settled practice inequity, the plaintiff, before any decree in the case, may obta.in, as of course, an, order dismissing his bill with costs. Ourtis v. Lloyd, 4 Mylne & C. 194; Cummins v. Bennett, 8 Paige,79; 1 Daniell, Ch. Pro (5th Am. Ed.) 790-793. Th'e order in the present case was entered in accordance with this practice, without notice to the defendant, or hearing or consideration of the case by the court. The only issue which had been joined was an issue of law upon the demurrer to .the bill, no evidence had been taken, and the case ha.d not even been set down for hearing. The clerk's taxation must therefore be modified. by striking out th6 docket fee to the defendant's solicitor. The statute having enacted thai no other compensation than as therein provided shall be taxed
COy V. PERKINS.
118
and allowed to attorneys, solicitors, and proctors, and having provided for a fee upon discontinuance in cases at law only, nosolicitor1s fee can be taxed in this case unless by the plaintiff's consent. this appeal, though involyirig a small amount, presents a question of frequent occurrence in practice, we have cOllsulted Judge Nelson, and he concurs in this opinion. Taxation modified. . NOTE. FEES ALLOWED TO OFFICERS. Section 823 prescribes. 1Vhat fees are. lowed to the clerk, district 'and other officers ;(a) and p,0t/lingcan be taxed as costs for the services of solicitors, or proctors, c9sts and fees enumerated in the !Jtatute;(b) but the fee bill doesuot prevent a court of equity from allowing fees .as costs SO, whether counsel fees shall be allowed on a creditor's an adjudication of bankruptcy rests ,,:ith the conrt.(d) Costs min taxed two counsel of the same party,(e) An allowance of a solicitor's feefor,.(in overJ;'uled exception to a master's report is pl'oper:(!) are recogniZed only as attorneys, and are compensated as such ;(g) and, the allowance of costs to them is in the. jurisdiction of the jUdge, and' not wit'liin the power of the officers of the treasury.(h) Where services were paXt pertaxed formed by one district attorney, and in part by his Buccessor, will be distributed between them.(i) The statute is,a positiv:e enactment,(j) and must be rigorously enforced.(k) The prevailing party is entitled only to such costs as the statute allows ;(1)' and when a charge for services is not found in.the schedule of fees it must be rejected ;(m) but feeslllay be allowed for matters not therein enumerated.(n) A court of equity may allow costs not presented in the statute, and such as justice and, equity may require. (0) COSTS. Costs are not payable out of the fund in controversy, (a) but each party is liable to the ollicer for fees for services performed for him without respect to which recovers judgment; '(b) and security olay be required from a. non-resident.(e) Commissiolls of the sheriff or marshal on collection:1, and of the clerk for taking charge of the money, are part of the costs of thesuit.(d) A party is not liable for costs for not doing what he was restrained OJ' inconjunction from doing;(e) but where delay in suing was attributable
'be
not
(a) U. 8. v. CIgars, 2 Fed. Rep. 49'>. (6) Canter v. Amer. In8, Co, 3 Pet. 307; The Baltimore, 8 Wall. 377; The LIverpool Packet. 2 Sprague,31; Derry v. Heraey, 21 Law Rep. 473. (0) In 1'8' Walle, 1 Low. 321; Ex pal·te Platt, 2 Wall. Jr. 453. (d) In 1'8 Williams, 2 Bank. Reg. 83. (.) fD re Waite, 1 Low. 321. (I) Garretson v. Clark,' 17 Blatch!. 256; S. C.15 Blatchf. 70. (g) 'the Nassau, Blntchf. Pr. 601. (h) U. S. v. Inger,oll, Crabbe. 1=16. (,) Ex parte Robbins, 2 G:llI. 320. (I) 'l'he Nassau, Blatchf. Pr.60I. (k) Stimpson v. Brooks, 3 Blatchf. 45ll.
(1) Dny v. Woodworth, 13 How. 363; Knens. v. l!chuylkill Bauk, 4 Wash. C. C. 106. (m) [)edek"m v, Vase, 3 Bl"tchf.l'.3; Lyell v. Miller, 6 McLean, 422; U. s. v,Smith, 1 Wood. & M. 181; U. S. v. Packages. 18 Law Rep; 284. (n) Jordan V. Agawam Wool Co. 3 Cliff. (0) Spnnldlng v. Tucker. 2 Sawy. 50... (a) National Bank v. Whitney, 103 U; S. 99. (b) Caldwell v. Jackson. 7 Cranch, 216; In re Stover. 1 Curt. 93. ' (0) Gro.s & P. Mnnuf'g Co, v. Gerhnrd, 8 Law llep.l36. (el) Kitchen v. Woodflu, 1 Hugh., 340. (,) Kelll'Dey 1'. A Pile Drlter, 3 247.
v.13,no.3-8
114
FEDERAL' 'BEPOR:J:EB·
.cealmentin the wrong-doer,costs were allowed. (I) No costEl a.re allowed ,on dismissing a bill and Theall{)wance or pon-allowance of costs in an admiralty cause is a.,matter ofdiscretion.(",) Theclefk's fee of one dollar with the note of issue, on in ad,miralty,put upon the calendar, is taxable. (i) Where there a.te cross-libels in a case of collision, and both vessels were in fault, costEl of bothcourtEl are equally divided.(j) The taxation <>f costs in a cause removed is governed by these sections; (k) and where a suit is removed it brings along with it the costs as an incident ;(l) but the act <>f congress prescribing what costs ma)t be taxed applies to such costs as accrue after the removal of the cause.(m) EXPENSES-ALLowANOE. The statute does not prohibit the allowance of -such disbUi'sements as are rendered necessary by otder of the court;(a) so, if the rule of court requires papers or briefs to be printed, their expenses may be'taxed as costs;(b) so, the cost of printing tM,record on appeal to the supreme court,(e) or the record preparatory to a final hearing, may be taxed ;(d) but the expense of printing testimony,(e) ora statement of the case, for the use ,of the jUdges, cannot be taxed as costs.(I) The cost of copies of appropriate to the case may be taxed,(g)and the amount paid for telegraphic dispatches in the suit is allowable, where by affidavit it is show:n to have been properiyand necessarily expended ;(h) so, postage paid on the and The expense of a survey, may be return of a commission may be charged against both parties in equal shares.(j) The expenses of iluch,IDodels .as are copies of models in the patent-office is allowable,(k) and their actual value is taxable,(l) but not the expense of procuring other models;(m) 80 expense of the model of the infringing machine is not allowable j(n)nor is defendant entitled to the cost of procuring a copy of plaintiff's patent. (0) , Expenditures for copies of pleadings and proofs are not taxable; and, in the absence of an agreement to that effect, the expense of reporting argument of plaintiff's counsel on final hearing,(p)6rthe expense of ,a stenographic reporter, is not taxable as costs.(q) This section does not apply to costs for travel and . attendance; these are allowed by rule ofcourt.(r) (f) The Christopher Columbus, 8 Ben. 239. (&,) Prune T.,Brandon Manuf'g Co. 16 Blatcbf.
v. Tucker, 2 Sawy. 50.
&;
N. Factory v. Corning, '1 Blatchc'16j Spanldlng
468.
, " . '; (h) Taylor v Woods, 8 Woods, 146. see The. Emily B. Sonder, 16 Blatcht 1:l6. (t) The Alice Tainter, 14 BlatchC. 225. (j) Vanderbilt T. Reynolds, 7 Law Rep. 623. (Ie) Clare T. National City Bank, 14 Blatchf.
(J) The Perselter"uce, 3 Dall. ,938. (8) Hathaway v: Roach, 2 WOOd. &; M.63. !h) Hnssey v. Bradley. 6'B1atcht. 210.
(I) Warren v. Ives, 1 Flippen, 356; Penro.., v. Penrose, 1 Fed. Rep. 479; Kreager v.Judd, 6 Fed. Rep, 967. See Gilman v. Libbey, 4 ClIlf.460. (m) Wal'ren V. Ivea, 1 Flippen, 356. (4) Dennis v. Eddy, 12 Blatch!. 95. (6) Neft' v. Pennoyer, 3 Sawy. 336; Dennla T. Eddy, 12 BlatchC. 196 j Brooks v. BJam, 2 Story, l;63.
446.
(e) Railroad Co. v. The Collector, 96 U. S. 694(el) JOI'dan v.Agawam Wool Co. 8 Clift'. 239. (.) HlIlI80F T. Brddley, 6 Blatchf. 210; Troy I.,
(I) Prouty v. Draper, 2 Story, 199. (j) Whipple v. Cumberland C. Co. 3 Story, 84, (Ii:) Hnssey v. Bradley. 6 Blatchf. 211. (I) Hathaway V. Roach, 2 Wood. &M. 63. .(10)) HUSBOY v.Bradley, 6 BlatchC.210; Woodruft'v.B"rney,2 FIsh.244j Hathawa, v.Roach, 2 Wood. &; M, 63. (n) Parker v, Bigler. 1 Flah, 286. (0) Hathaway v. Roach, 2 Wood. I; II. G3j ·'Woodruffv. Barney, 2 Fiah. 244. (11) Hussey v. Bradley, 6 BlatchC. 210. (q) Brldges v. Sheldon, 18 Blatch!. 607. (r) Nichols.v. Brunswick, 3 Clift'. 88;· Whipple v. Cumberland. C. eo. 3 Story, 84; v. Rosch, 2 WoOl!. &; M.63. See Bebrlng v.Ward, 4 Wash. C: C. 646.
115
DOCKET FEE. The docket fee of 820 is the highest compensation allowed, and it can be allowed but once;(a) but Where there were three trials-the first resulting in 8 verdict for plaintiff, and the,other two in Ileparate verdicts far defendant-the defendant's attorney is entitled to a docket fee of $20 for each of the three trials. (b) , In a casetri.ed twice by 8 jury, which both times the case was dismissed, a doc$et fee of oIlly five dollars is taxable. (c) .A docket fee maybe taxed in one of a number of cases embraced, by stipulation, in a single hearing.(d) It cannot be taxed for an attorney not name is not on the' docket admitted to the bar of the court, nor one before the filing of the general replication.(e) It is to be taxed in every case where a final decree is entered after replication filed.(/) There is no distinction in admiralty between suits in 1'em and suits in personam.(u) "Trial" means a trial by jury, and until the jury is sworn there is no trial.(h) .. Trial before a jury" to cases tl¥l is terminated by a verdict and judgment thereon.(i) "Final hearing" is the submission of a case in equity'for determination.(J) The docket fee may be all<;lwed, although libelant discontinues after a witness has been sworn ;(k) but it is not taxable on a motion for an order, by default, against stipulatorB.(l) If parties waive a jury trial, a docket of only $10 can be taxed.(m) It is allowable in the circuit court, when a cause on is on the calendarfor hearing, and dismissed for,w'ant of security for ,costs.(n) A. docket fee Of ,$20 is taxable in. cases of involuntary, but not in cases of yoluntary, bankruptcy.(o) If tried before the court, and the petition dismissed, it may be allowed to defendant's. attorney; but it cannot be taxed in favor of the attotpeyof the petitioning be alcreditor.(p) So, when there is no denial and no contest, interlocutory lowed.(q)· Proceedings before a master upon a reference, for purpose, Is neither a trial nor a final hearing, and the docket fee cannot be to a allowed therefor; (r) nor can a docket fee be allowed upon commissioner's report.(s) DEPOSITIONS. The attorney of the prevailing party is entitled to the pay oN&2.50 for each deposition admitted in evidence,'when it is agreed that they maybe read onthetrial,(t) although t11e witness attended and was sworn and examined;(u) but if the depositions taken and used in the district court are read from the apostles in the circuit conrt, no fee is taxable in the circuit court.(v) The' costs ot taking a deposition de beneesseriiay be taxed,(w) but if the party dispenses with the deposition and examines the witness, the costs of the deposition cannot be taxed ;(z) nor will fees of illegible deposi. (01) Troy L. N .'Factory Y. Corning, 1'B1atch!. 16; Dedekam Y. Vose, 3 Blatchf. 11. (.) Schmieder Y. Barney, 7 Fed. Rep. 461. (e) Strafer Y. Carr, 6 Fed. Rep. 466. (lI) Goodyear D. V. Co. Y. olgOOd, 13 O. G··· (.) Goodyear D. V. Co. v. Osgood, 13 O. G.lF46, (f) Goodyear D. V. Co. v. Osgood, 13 O. G. 325. (B') The Young Mechanic. 3 Ware, 68. (h)':Millerv. Scott, 2 Ban1tReg.,l16; The Ba, City, 3l'ed. Rep. 47. '(I) strater v. Carr, II Fed. Rep. 466. ., U) D. V. Co. Y. Osgood, 1U 0. G.82G. (t) The Ba, City, 3
(I) Dedekam Y. Vose. 3 Blatcht. 163. (m) Jqnes v. Schell, 8 Blatch!. 79. (n) Hayford Y.Grifllth, 3 Blatellt. 79. (0) Miller v. Scott, 2 Bank. Reg. 86. (1') Dnldson Y. Coatell, 6 Bank. Reg, 3M. (q) 10 re Mead, 8 Pillla. 174, , (r) Doughty v. Manu!'g Co. 4 Fish. 31B. (.) Beckwithv. Easton., 4 Ben. 357. , ; (t) Jerman'T. Stewart, 12 Fled. Rep. 2iL (u) y. Ben. 351. (t:) Dedekam v; Vose,:'I Blatchf.11. (flO) Fry v. Yeaton,'1 Orlmch, C. C. 600. (.) Hathawa, T. ROllCh,' 2 WOod.,. M. 63.
116
FEDEBAL REPORTER.
tions be allowed.(y) The fee for depositions relates to testimony taken ot',t of court under such authority as will entitle. it to be read as evidence in court at the trial or hearing.(z) Courts of the United &tates will allow the same fees to anyone taking a deposition as is allowed by the Revised Statutes to clerks of courts and commissioners;(a) !Jut a fee for an ea; parte affidavit in a proceeding for a preliminary injunction is not allowable.(b)-[ED. (y) The Avid, 3 Ben. 434.
(%) Troy L " 16.
Factory V. Corning, 7 Blatchr.
(a) Jerman v. Stewart. 12 Fed. Rep, 27] (b) StimpsoQ v. Brooke, 3 Blatchr. 4G6!
G.A.LLENA tJ. HOT SPRINGS' RAILROAD;
(Cirouit Gour', E. D. Arkansas. April Term, 1882.) 1. IUJLROADS-E.mCTING PASSENGER FROM 'tRAIN.
Where the legal right of a conductor of a: railroad train to eject or remove a passenger from. the <lars exists, he must effect the removal at a proper place and in a proper'manner, and with no more confusion, force, or violence than is reasonably' necessary for the purpose. i"·
2.
SAME-DuTY OF CONDUCTOR IN EJECTING, PASSENGER.
Before II: conductor can require a passenger to get oft the carll he should stop the train ata stationar depot, or where he could be put off without injury or danger of injury. He has no right to forCibly eject a passsnger at such ,a place and in su'cha manner as his whim, caprice, or malice may dictate or sl.\ggest. 8. SAME,-AcTION-PJiO'\fINCE OF JURY.
In an action for damages for violent ejection from a car by the conductor, it is the' province'of the jury to reconcile difference in the testimony,and ,to decide as to the credibility of the witnesses, tl\king into consideration the relalliQn they to the case, their prob,able'motives, their demeanor, and their opportunities of knowing and seeing the fl\ctsabout which they testify, and the reasonableness 01,' unreasou'ableness of their te,stimony, in view of the knowl. edge of nature, and the establish!'ld and'undoubted facts in the case. 4. ASSAULT ON PASSENGER.
Whel',e a conductor, wit.1;lIl,loaded revqlrerin his approaches ,aJ>assen. ger before making any ell'ort to induce him to get off, and when the 'passenger hlld not JUal;!3, or threatened to m!tke fqrcible resistance to the conductor is guilty of agtoss outrage. 5. SAME-THll,EATS. .' ' " " .'
With or without the use of a deadly weapon., a conductor has no rjght to compel a passenger, by cOJUmands or threats, to juJUp froJU aJUoving train.', 6.
The law makes itthe:'duty of railroad· companies to employ competent, slIie, and civil JUen to discharge-till! duties of, a conductor, and for theliss&ults, ih. juries, and wrongsinfliQted on by a conductor in of his employment.a.s such, is responsible. .