former practice is followed, the legality of the taxation may probably be reviewed by the Supreme Court, if the case is taken to that forum by the defendant, to secure a reversal of a judgment against him for substantial damages as well as costs, and if the court affirms or modifies the judgment as to the damages.' But where only nominal damages and costs are adjudged against a defendant, he cannot take the case to the Supreme Court for the purpose of securing a reversal of the judgment or a diminution of the costs." Where a judgment for costs is entered against a plaintiff on the basis of a verdict for the defendant, the plaintiff may to the Supreme Court on a writ of error. If he secures

go

a reversal of the judgment for errors on the trial, there will be no occasion for the court to consider the correctness of the taxation of costs. If, on the other hand, the court finds no error upon which to ground a reversal, it will seek for no error in the taxation."

The clerks of the Circuit Courts are the primary taxing officers of those tribunals; but they perform that duty under the general or particular direction of the judges. The taxation of costs is ordinarily made by the clerk on his own motion, or at the request of the prevailing party, and without notice to the defeated party. If the latter is dissatisfied with the result, the court will hear his motion for a retaxation. If such a motion is accompanied with an explanation showing colorable ground for a claim of error in the taxation, the court will order the clerk to retax the costs, upon the mover giving the opposite party due notice of the time and place thereof, and paying the costs occasioned thereby.' Then, if either party is dissatisfied with the result of the retaxation, he may appeal to the court; but as a foundation for the hearing of such an appeal, he

Parks v. Booth, 102 U. S. 106,

1880.

Elastic Fabric Co. v. Smith, 100 U. S. 110, 1879; Paper-Bag Cases, 105 U. S. 772, 1881.

3 Canter v. Insurance Companies, 3 Peters, 318, 1830.

4 Collins v. Hathaway, Olcott's Reports, 182, 1845.

must secure from the clerk an itemized bill of the charges to which he objects;' and as a foundation for success on that hearing, must show that part or all of those items are unwarranted by the statute. All of these proceedings must take place at the term in which the judgment is entered ;* except in cases where blanks for costs are left in judgments, pending writs of error from the Supreme Court.

§ 550. A writ of error, properly taken out from the office of the clerk of the Supreme Court, will carry any action at law, for an infringement of a patent, to the Supreme Court of the United States for review, regardless of the amount of damages in controversy; and whether the case tried by a jury, by a referee, or by a judge alone. But no writ of error can carry any question of fact to the Supreme Court. The sole function of such a writ is to secure from that tribunal a review of the questions of law involved in a case, or, where the finding below was made by a judge, and was special, to secure a review of the question whether the facts so found are sufficient to support the judgment based thereon.'

§ 551. Bills of exception, allowed and signed, or sealed by the judge, constitute the only mode by which the questions of law that arise on the trial of a case, can be prepared for transmission to the Supreme Court in pursuance of a writ of error." But a paper which is incorporated in the record, and which has all the substantial characteristics of a bill of exceptions, will be treated as such, even though it is not so entitled.' Such a document should state no

more of the case than is necessary to present the questions which are reviewable in the Supreme Court, and which the plaintiff in error seeks to have reviewed there.' If those questions relate only to the pleadings, the pleadings only should be inserted in the bill of exceptions. Where those questions relate only to the competency of a witness, the bill of exceptions need only show that the witness was offered, and was accepted or rejected, as the case may be, and that such admission or rejection was duly excepted to, and, in case of a rejection of a witness to want of novelty, that due notice of the fact, to be proved by him, was served on the opposite party; and in all cases of rejection, that the testimony which the witness would have given, was material to the issue. This last requisite was once held by the Supreme Court to be unnecessary;' but that tribunal afterward decided, that to render an exception available in that court, it must affirmatively appear that the ruling excepted to, affected, or might have affected, the decision of the case. Accordingly, in the case last cited, the court held that where particular answers of a competent witness were excluded by the court below, the bill of exceptions must contain those answers, and must show that they were material to the issues; and the court said in the same case that where particular questions are excluded, and therefore not answered, the bill of exceptions must show what facts the party offered to prove by means of those questions, and that such facts were material to the case. And in a still later case, the court held, that where a particular question was objected to, but was admitted and was answered, the bill of exceptions must show what the answer was, in order to enable the Supreme Court to pass upon the propriety of the evidence.'

1 Hausknecht v. Claypool, 1 Black. 431, 1861.

2 Philadelphia & Trenton Railroad Co. v. Stimpson, 14 Peters, 448, 1840; Blanchard v. Putnam, 8 Wallace, 420, 1869.

3 Vance v. Campbell, 1 Black. 427, 1861.

Railroad Co. v. Smith, 21 Wallace, 255, 1874.

1879.

Lovell v. Davis, 101 U. S. 542,

§ 552. Where the questions which are sought to be brought before the Supreme Court, relate only to the instructions which the court below gave, or refused to give to the jury, the bill of exceptions should set forth the issues of the pleadings, and the substance of the charge or refusal to charge, as the case may be, together with whatever part of the evidence is necessary to enable the Supreme Court to decide upon the propriety, or impropriety, of the action of the court below. The issues of the pleadings should be stated in the bill of exceptions, for otherwise the appellate tribunal cannot know whether the charge or refusal to charge, which was excepted to, was material to the case; and because the Supreme Court will not sit to try moot issues of law, nor to establish legal propositions in cases wherein those propositions are not involved.' The substance of the charge, rather than the charge in extenso, should be stated in the bill, because the Supreme Court does not desire to be occupied in listening to minute criticisms and observations upon expressions incidentally introduced into a charge for purposes of argument or illustration, and which, if they were the direct point in judgment, might need qualification, but which do not show, that upon the whole the relevant law was not justly expounded to the jury.' But the whole substance of the charge should be stated where nothing but charged matter is excepted to; because if part is omitted, the Supreme Court cannot know that the omitted portion did not cure the faults of the parts inserted. So also, where the matter which is excepted to is a refusal to charge; not only the refused instruction, but also the whole substance of the given charge, should be inserted in the bill of exceptions; for otherwise the Supreme Court cannot be informed whether the refused instruction was not substantially contained in the charge which was actually given; and because judges are never bound to instruct juries in the form re

1 Jones . Buckell, 104 U. S. 554, 1881.

Evans v. Eaton, 7 Wharton, 356 1822.

quested, provided they substantially embody the whole of the relevant law in the charges which they give.' Where nothing but charged matter is excepted to, the bill of exceptions should not contain any part of the evidence; because the only question before the Supreme Court in such a case is the correctness of the charge.' But where a refusal to charge is excepted to, the bill must contain the evidence to which the refused instruction relates, or must contain a statement of facts pertinent to that point, and a statement that evidence was introduced tending to prove those facts; because no court is bound to give any charge which does not relate to the evidence, no matter how sound the proposed instruction may be, as a proposition of law.

§ 553. Specific exceptions must be made to instructions, in order to entitle the objector to a review of those instructions in the Supreme Court. Where a requested instruction is refused, and the refusal is excepted to, that refusal will be sustained by the Supreme Court, if the requested instruction was unsound in any particular.' Counsel ought therefore to carefully separate their propositions of law from each other, when framing their requests for instructions, lest one erroneous proposition deprive them of the benefit of several sound ones.

§ 554. Exceptions to charges, or to refusals to charge, must be made and noted while the jury is at the bar. But bills of exception may be drawn up, and signed or sealed by the judge at any time before the expiration of the term, unless the judge enforces some rule of his court, which prescribes a shorter time for the preparation and presentation of such documents for his approval; and, if not otherwise too late, such bills may be prepared and signed after a writ of error has been sued out from the Supreme Court to transfer the case to that tribunal."

'Indianapolis & St. Louis Railroad Co. v. Horst, 93 U. S. 295, 1876. ? Pennock v. Dialogue, 2 Peters, 1, 1829.

3 Indianapolis & St. Louis Rail

road Co. v. Horst, 93 U. S. 295, 1876. Phelps. Mayer, 15 Howard,

160, 1853.

Hunnicutt . Peyton, 102 U. S. 353, 1880.