9

the shortest, most practical route, although the witness traversed a longer distance. A witness does not lose his right to his fees merely because he was not subpoenaed, if his attendance and examination were procured in good faith. Nor if he attend, but is not examined; 10 nor, it seems, if he is required to attend at the hearing after his deposition has been taken;" nor does he suffer any abatement of them, because he is summoned to attend at the same time to testify in several suits, whenever some but not all the parties are the same; 12 not even if both suits are tried together and the witness is examined but once, provided no order consolidating the suit has been obtained. In all such cases the fees, if paid, can be taxed, provided the witnesses were in good faith asked to attend." When the trial is postponed because of the illness of counsel," or delay in the transmission of a deposition taken by the other side, and the witnesses are required to remain during the postponement, they must be paid for the intervening time. So, also, when the witnesses are required to remain after their examination to the end of the hearing. Fees for travel of a witness in going and returning can only be taxed once for each occasion of taking testimony, although each occasion em

15

Seventh Circuit, where it was held that in such a case no fees or mileage could be taxed, Dreskill v. Parish, 5 McLean, 213. See Smith v. Chicago & N. W. Ry. Co., 38 Fed. R. 821; the Eighth Circuit, Pinson v. Atchison, T. & S. F. R. Co., 54 Fed. R. 464; and the Ninth Circuit, Spaulding v. Tucker, 2 Sawyer, 50; Haines v. McLaughlin, 29 Fed. R. 70.

8 Hunter v. Russell, 59 Fed. R. 964. 9 Anderson v. Moe, 1 Abb. (U. S.) 299; U. S. v. Sanborn, 28 Fed. R. 299; The Vernon, 36 Fed. R. 113; The Syracuse, 36 Fed. R. 830; Eastman v. Sherry, 37 Fed. R. 844; Simpkins v. Atchison, T. & S. F. R. Co., 61 Fed. R. 999; Sloss L. & S. Co. v. S. C. & G. R. Co., 75 Fed. R. 106; Hanchett v. Humphrey, 93 Fed. R. 895. Contra, Haines v. McLaughlin, 12 Sawyer, 126; Lilienthal v. Southern Cal. Ry. Co., 61 Fed. R. 622.

16

10 Clark v. Am. Dock & L Co., 25 Fed. R. 641; Hathaway v. Roach, 3 W. & M. 63; Sloss L. & S. Co. v. S. C. & G. R. Co., 75 Fed. R. 106. Contra, Simpkins v. Atchison, T. & S. F. R. Co., 61 Fed. R. 999.

11 Beckwith v. Easton, 4 Ben. 357; Anderson v. Moe, 1 Abb. (U. S.) 299. 12 Parker v. Bigler, 1 Fish. 285; The Vernon, 36 Fed. R. 113; Archer v. Hartford F. Ins. Co., 31 Fed. R. 660. But see Simpkins v. Atchison, T. & S. F. Ry. Co., 61 Fed. R. 999.

13 The Vernon, 36 Fed. R. 113; Archer v. Hartford F. Ins. Co., 31 Fed. R. 660.

14 Whipple v. Cumberland C. Mfg. Co., 3 Story, 84.

15 Hunter v. Russell, 59 Fed. R. 964.

16 Whipple v. Cumberland C. Mfg. Co., 3 Story, 84.

braces a number of days; " unless his second attendance was required by an adjournment caused by the fault of the unsuccessful party, when his traveling fees may be taxed for his attendance at such adjourned day if incurred.18 Witnesses summoned and attending court are entitled to their mileage and per diem fees if the cause was docketed and could have been tried at the term at which the witnesses attended.19 If a witness is subpoenaed at the place of trial on the day when the subpoena requires him to attend, he is not entitled to any mileage.20 Where witnesses were subpoenaed to testify to a particular point, though the opposite party admitted the point, mileage and per diem fees up to the time of such admission were allowed; " and a second trial being had, and no stipulation or entry made on the record that the point would be admitted at such second trial, such per diem and mileage fees were allowed for attendance at that trial also.22 But it has been held, on the other hand, that a party may not tax the fees of a witness whom he has subpoenaed, but whose testimony is either abandoned or stricken out; 23 nor may he tax the fees of more than three witnesses to a single fact; " nor fees and mileage for himself when he testifies in his own behalf; 25 nor fees which he has not paid. It has been held that

21

17 Spill v. Celluloid Mfg. Co., 28 the bill of costs against the losing Fed. R. 870.

18 Hake v. Brown, 44 Fed. R. 734. 19 Young v. Merchants' Ins. Co., 29 Fed. R. 273.

20 The Sunnyside, 5 Ben. 162.

party; and it seems that a party cannot have such fees taxed until he has paid the witness, either before or after the service has been rendered, and before judgment for

21 Young v. Merchants' Ins. Co., 29 costs. O'Neil v. Kansas City S. & M. Fed. R. 273. R. Co., 31 Fed. R. 663. But it has been held that witnesses do not lose

22 Ibid. 23 Troy L. & N. Factory v. Corning, their right to mileage and per diem

7 Blatchf. 16.

fees by not insisting upon prepay

24 Bussard v. Catalino, 2 Cranch, ment; nor by the fact that they C. C. 521.

25 Nichols v. Brunswick, 3 Cliff. 88; Roundtree v. Rembert, 71 Fed. R. 255. Contra, Tuck v. Olds, 29 Fed. R. 883, W. D. Mich.

26 Leary v. Miranda, 40 Fed. R. 607; O'Neil v. Kansas City S. & M. R. Co., 31 Fed. R. 663. A witness subpoenaed by the prevailing party to the suit cannot upon his own motion have his fees that remain unpaid taxed in

were in attendance on the court in another cause between different parties, and received per diem and mileage fees therefor. Young v. Merchants' Ins. Co., 29 Fed. R. 273. It has been held that when a person has been served with a subpoena and has received money for traveling expenses, he cannot refuse to obey such subpoena because the proper amount of mileage has not been

fees and mileage may be taxed for the attendance as witnesses of officers of a corporate defendant," but not where a defendant corporation was ordered to account before a master in a suit for an infringement of a patent.28 Only the necessary expenses of a government clerk sent away from his place of business as a witness for the government will be paid, and nothing can be taxed in the bill of costs for his travel or attendance.29 The same rule applies to deputy-clerks, as they are also officers of the court. But clerks. employed by the marshal in his office, keeping his accounts, are not officers of the court, and are entitled to fees and mileage." A deputy-marshal is an officer of the court; but unless he is actually engaged in attendance upon the court, he is entitled to per diem fees and mileage, if summoned as a witness by the government. Where a party has paid some witnesses more and some less than the legal fees, he cannot group together the amounts so paid and collect the legal fees for all.33

§ 334. Miscellaneous disbursements.- The Revised Statutes provide that "the bill of fees of the clerk, marshal, and attorney, and the amount paid printers and witnesses, and 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 by a judge or clerk of the court, and be included in and form a portion of a judgment or decree against the losing party. Such taxed bills shall be filed with the papers in the cause." The Federal courts are not absolutely limited in the taxation of costs to such items as are specifically named in the statute. Disbursements for printing the record, evidence, and other papers in a suit in equity in a Circuit Court, when required by rule, are, at least

paid; and that persons subpoenaed as witnesses in the courts of the United States, if they have the means, are obliged to obey whether their fees are advanced or not. Norris v. Hassler, 23 Fed. R. 581; U. S. v. Durling, 4 Biss. 509, 510; Hake v. Brown, 44 Fed. R. 734.

27 Wead v. Millersburg H. W. Co., 79 Fed. R. 129.

28 Am. Diamond Drill Co. v. Sullivan Mach. Co., 32 Fed. R. 552.

29 U. S. R. S., § 850; U. S. R. S., § 849; U. S. v. Sanborn, 28 Fed. R. 299. 30 Ex parte Burdell, 32 Fed. R. 681. 31 Ibid.

32 Ibid.

33 Burrow v. Kansas City, F. S. & M. R. Co., 54 Fed. R. 258.

§ 334. 1 U. S. R. S., § 983.

2 Spaulding v. Tucker, 2 Sawyer, 50; Gunther v. Liverpool, L. & G. Ins. Co., 10 Fed. R. 830.

3

in the First and Second Circuits, taxable as costs. Disbursements for printing testimony and other papers of the court, when not required by rule or special order, cannot be taxed.' The appellant or plaintiff in error, when allowed costs, may tax his disbursements for clerk's fees and for printing the record." Where, upon an appeal from a decree dismissing a bill which was affirmed with costs, the defendant had taken a cross-appeal from the dismissal of his cross bill, which appeal was dismissed, the cross-appellant was allowed to tax the fees paid for one-half the cost of printing the record. Where the costs of printing the record on an appeal had been paid by a receiver under an order out of the fund in his hands, the defendant who finally succeeded was allowed to tax these disbursements, but not the receiver's fees and the necessary disbursements incidental to the receivership. Disbursements for printing objections to a petition to the Supreme Court in its original jurisdiction, for a writ of mandamus, are taxable. Disbursements for printing briefs on appeal, in error, or in original proceedings in the Supreme Court or Circuit Courts of Appeals, are not taxable.10 Disbursements for printing briefs which the rules require to be printed are taxable in the Circuit Courts in the Second Circuit," even when the brief is printed after the argument. If copies of papers, necessarily obtained for use on the trial, are put in evidence, and no order is made rejecting them as evidence, it is the duty of the clerk to allow, on taxation, the disbursements paid for the various copies put in evidence

8

3 Jordan v. Agawam Woollen Co., 3 Cliff. 239; Dennis v. Eddy, 12 Blatchf. 195; Hake v. Brown, 44 Fed. R. 734. Contra, Lee v. Simpson, 42 Fed. R. 434.

4 Atwood v. Jaques, 63 Fed. R. 561; Spaulding v. Tucker, 2 Saw. 50.

5 Supreme Court Rule 10; Circuit Court of Appeals Rule 23. But the expense of printing superfluous papers will be disallowed. B. & S. F. Co. v. Kraetzer, 150 U. S. 111; infra, § 490. E. g., no costs were allowed for printing the record upon a motion for a new trial. Nederland L. L. Co. v. Hall, 86 Fed. R. 741.

6 Nichols, Shepard & Co. v. Marsh, 131 U. S. 401.

7 Ferguson v. Dent, 46 Fed. R. 88, 94. 8 Ferguson v. Dent, 46 Fed. R. 88, 96; Elk F. O. & G. Co. v. Jennings, 90 Fed. R. 767.

9 Ex parte Hughes, 114 U. S. 548; Gird v. California Oil Co., 60 Fed. R. 1011.

10 Ibid.

11 Hake v. Brown, 44 Fed. R. 734; Dennis v. Eddy, 12 Blatchf. 195. Not in the Ninth Circuit, where the rules do not direct that briefs be printed. Gird v. California Oil Co., 60 Fed. R. 1011.

12 Sackett v. Smith, 46 Fed. R. 39.

and forming part of the record for final hearings. 13 It has been held that fees paid for certified copies of a party's own muniments of title cannot be taxed, since he is presumed to have the originals in his possession, unless he proves the contrary; but that he may tax fees paid for transcripts of records of suits and other papers on which he relied to defeat his adversary's claim of title. Copies of papers obtained for use on interlocutory or preliminary or incidental motions or hearings are not obtained for use on trials, and disbursements in procuring them have been disallowed.15 Disbursements taxable in a State court may when made be taxed in an action at common law in a Federal Court held in the same State. The legal fees paid to masters," commissioners, 18 and examiners 19 can be taxed. Fees paid an attorney for the examination of a witness before a master or special examiner," payments to an attorney for traveling expenses," payments to messengers," payments to witnesses for services in examining property concerning which they afterwards testified, cannot be taxed. Disbursements for surveys and plans necessitated by an order to make a pleading more definite and certain, cannot be," but the cost of maps necessarily used on a trial have been taxed.25 Disburse

23

13 Wooster v. Handy, 23 Fed. R. 49. 14 Ford v. Louisville, N. O. & T. Ry. Co., 45 Fed. R. 210. The cost of copies of testimony obtained solely for the use of counsel in preparing for trial, Tesla El. Co. v. Scott, 101 Fed. R. 524; Atwood v. Jaques, 63 Fed. R. 561; or for use in preparing a bill of exceptions, Monehan v. Godkin, 100 Fed. R. 196, were held not to be taxable.

16

18 Supra, § 831; Tesla El. Co. v. Scott, 101 Fed. R. 524.

19 In the Second Circuit examiner's fees are three dollars a day, and thirty cents a folio for typewriting the testimony. Edison El. L. Co. v. Mather Electric Co., 63 Fed. R. 559. Where the Federal court appointed a stenographer a special examiner, he was allowed the fees paid by the State practice for similar services. Indianapolis Water Co. v. American S. B. Co., 65 Fed. R. 534. But see Jerman v. Stewart, 12 Fed. R. 271.

20 Strauss v. Meyer, 22 Fed. R. 467. 21 Wooster v. Handy, 23 Fed. R. 49. 22 Ibid.

23 Tuck v. Olds, 29 Fed. R. 883. 24 New Hampshire L. Co. v. Tilton, 29 Fed. R. 764.

25 Lilienthal v. Southern Cal. Ry.

16 Huntress v. Epsom, 15 Fed. R.732. Co., 61 Fed. R. 622. 17 Supra, § 314.