Fitton v. The Phoenix Assurance Company.

rule declared in Hawes v. Oakland, (104 U. S., 460,) and subsequent cases in the Supreme Court. It has been deemed proper, however, to meet the main question in the case, in disposing of the demurrer.

The demurrer is sustained.

W. F. Scott, for the plaintiff.

Starr & Ruggles and W. S. Logan, for the defendants.

ROBERT FITTON AND WIFE

vs.

THE PHOENIX ASSURANCE COMPANY AND OTHERS. IN EQUITY.

The provision of § 648 of the Revised Statutes, that "the trial of issues of fact in the Circuit Courts shall be by jury, except in cases of equity and of admiralty and maritime jurisdiction," does not forbid the sending of an issue of fact in an equity case to be tried by a jury.

The issues in this case being as to fraudulent representations in obtaining agree ments to insure against fire, and wrongful and negligent acts in causing the fire, they were ordered to be tried by a jury.

(Before WHEELER, J., Vermont, February 10th, 1885.)

WHEELER, J. This cause has been heard before, on demurrer to the bill, which was overruled as to the defendants now before the Court, with leave to answer over. (Fitton v. Fire Insurance Ass'n, 20 Fed. Rep., 766.) The defendants have answered that the agreement to bind insurance was procured by the fraudulent representations of the orators as to the situation of the property as to exposure to, and precautions against, loss from fire; that the loss occurred through want of the precautions represented to be employed, and the wrongful, wilful, and negligent, acts of the orators. Issues of fact are raised by the traverse of the answers, and the defendants now move that these issues be sent to a jury.

Fitton v. The Phoenix Assurance Company.

The motion is opposed upon the ground that, by the statutes of the United States, the power to send issues of fact to a jury is not given to, but rather taken from, the Circuit Courts, as Courts of equity; and that these issues should be tried by the Court, and not sent to a jury, if the power to send them exists. The provision of the statute chiefly relied upon to show want of such power is that found in section 648 of the Revised Statutes, providing that "the trial of issues of fact in the Circuit Courts shall be by jury, except in cases of equity and of admiralty and maritime jurisdiction." It is argued that the exception excludes that mode of trial in the excepted cases. But that is not understood to be the meaning of the provision. The object of it seems to have been to carry out the constitutional provision guaranteeing the right to trial by jury in common-law cases, and at the same time not to require a trial in that mode in equity and admiralty cases. This provision was enacted in early times, and the power of a Circuit Court under it to send issues to a jury has always been recognized. (Field v. Holland, 6 Cranch, 8; Harding v. Handy, 11 Wheat., 103; Brockett v. Brockett, 3 How., 691.) It is expressly stated to exist, in Garsed v. Beall, (92 U. S., 684.) The motion cannot be de

nied upon that ground.

The inconvenience of so sending the issue has been dwelt upon in the argument, but, as the trial must be in the same Court, with the difference only that it is upon the law side by jury, according to the course of the trial of common-law cases, instead of on the equity side by the judges, according to the ordinary course of equity procedure, that consideration. is entitled to but little weight.

The principal question is as to the propriety of so sending the issues in this particular case. The issues are the same that they would have been if an insurance in fact, by delivery of a policy, instead of a mere agreement to insure, had been effected. The orators have standing in this Court merely on account of that difference. The right to trial by jury of an issue of fact proper for their cognizance is valuable, as

Wooster v. Handy.

it exists and is guaranteed by the Constitutions and laws of this country, notwithstanding the hostility shown to it in some quarters. The defendants have not an absolute right to that mode of trial in this case, because it is not within the constitutional or statutory provisions, but they have the right to have their request for it carefully considered, when it falls so naturally in the line of the right in other cases. These issues seem to be very proper for the cognizance of a jury in this case.

Motion granted.

James S. Martin, for the defendants.

Martin II. Goddard, for the plaintiffs.

No. 1. GEORGE H. WOOSTER vs. CHARLES W. HANDY. IN

EQUITY.

No. 2. THE SAME VS. THE SINGER MANUFACTURING COMPANY OF NEW YORK. IN EQUITY..

No. 3. THE SAME VS. THE HOWE MACHINE COMPANY. IN

EQUITY.

No. 4. THE SAME 28. THE WILCOX & GIBBS SEWING MACHINE COMPANY. IN EQUITY.

No. 5. THE SAME 28. THE DOMESTIC SEWING MACHINE COMPANY, IMPLEADED, &c. IN EQUITY.

No. 6. THE SAME 28. ALLEN SCHENCK, IMPLEADED, &C. IN EQUITY.

No. 7. THE SAME 28. THE SINGER MANUFACTURING COMPANY OF NEW JERSEY. IN EQUITY.

No. 8. THE SAME VS. CHARLES B. BURKE. IN EQUITY.

Wooster v. Handy.

No. 9. THE SAME VS. JOHN THORNTON ET AL. IN EQUITY.

No. 10. THE SAME VS. ELI J. BLAKE ET AL., IMPLEADED, &c. IN EQUITY.

To constitute a final hearing in equity or admiralty," within the meaning of § 824 of the Revised Statutes, allowing a docket fee of $20 to solicitors and proctors, on a final hearing in equity or admiralty," there must be a hearing of the cause on the merits, that is, a submission of it to the Court, in such shape as the parties choose to give it, with a view to a determination whether the plaintiff or libellant has made out the case stated by him in his bill or libel, as the ground for the permanent relief which his pleading seeks, on such proofs as the parties place before the Court, be the case one of pro confesso, or bill or libel and answer, or pleadings alone, or pleadings and proofs. Where, after a hearing on pleadings and proofs, in a suit in equity, a decree for the plaintiff is directed, and then the case is reheard, and the bill dismissed, two docket fees of $20 each are taxable against the plaintiff. Where a deposition is taken in one case, and is, by stipulation of the parties to another case, admitted in evidence in the latter, the solicitor's fee of $2.50, given by § 824, "for each deposition taken and admitted as evidence in a cause," cannot be taxed in the latter case, against the losing party. Under the provision of § 983, 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, to be taxable, must not only be for use "on trials," that is, such trials and final hearings as are elsewhere spoken of in the Act of February 26th, 1853, (10 U. 8. Stat. at Large, 161,) from which the provision is taken, but they must have been actually used, or obtained for such use under a rule, order, or stipulation; and all exemplifications and copies not provided for in § 983 must be excluded, such as papers used on interlocutory or preliminary or incidental motions or hearings.

Expenses of a messenger in bringing a model from the Patent Office to use on a motion for a preliminary injunction; travelling expenses of the solicitor; cost of a box for an exhibit; cost of moving exhibits; cost of machine exhibits or models, not from the Patent Office, and not procured under an order or rule of Court; cost of photo-lithographic sketches, not from the Patent Office, but introduced by witnesses in giving evidence; are not taxable items. Items for fees of witnesses, not paid to them for attendance in a case, when they were paid fees for attending in other cases, are not taxable in the absence of explanation as to why they were not paid.

Where, in several cases, there is but one record of proofs for all, and each witness is sworn in each case, and his deposition is written down only once, and is entitled in all of the suits, a deposition fee of $2.50 to the solicitor, for each witness, in each case in which his deposition is entitled, is taxable, in the VOL. XXIII.-8

Wooster v. Handy.

absence of any agreement to the contrary, because the deposition was "taken and admitted as evidence" in each case in which it was entitled.

Where the witness is sworn in several cases at once, between the same plaintiff and different defendants, and his deposition is taken in all at the same time, by being written down once, as given, under the titles of all the cases, and he is paid his lawful witness fees in each case, such fees are taxable, under § 848. Certain certified copies of papers, put in evidence, pertaining to the text in, and forming part of, the record of proofs for final hearing, held to be taxable. On an appeal from the taxation of costs, the plaintiff for the first time applied to the Court to declare certain of the defendant's depositions to be incompetent and immaterial, under Rule 67 in Equity, so as not to be charged with the costs of them: Held, that the objections were waived by the laches. (Before BLATCHFORD, J., Southern District of New York, February 16th, 1885.)

BLATCHFORD, J. In suits Nos. 1, 9, and 10, hearings were had on pleadings and proofs, and decrees directed for the plaintiff, in April, 1881. (Wooster v. Blake, 8 Fed. Rep., 429.) Afterwards, on the application of the defendants, those cases were reheard, because of decisions made by the Supreme Court, in January, 1882, and the bills were dismissed, in July, 1884. (Wooster v. Handy, 21 Fed. Rep., 51.) At the same time, after hearings on pleadings and proofs, the bills were dismissed in the other 7 cases. (Wooster v. Howe Machine Co., 21 Fed. Rep., 67.)

The questions now to be considered arise on appeals by both parties from the taxation by the clerk of the defendants' bills of costs. The amounts of the bills in the several cases, as offered for taxation, the amounts disallowed, and the amounts taxed, were as follows: