TIBLIEB 'V. ALFORD.·
(Ui'l'euie OOU'I'e, E. D. Louisiana.
In an action for damages for an unlawful seizure under attachment, if the seizure is proved wrongful, but made in good faith, the jury should find for the plaintiff for actual damages only; but if they should flnd that tho seizure was made in bad faith and maliciously, they might assess proper punitory damages in addition to actual damages proved.
Punitory damages are not allowed for the purpose of rewarding beyond compensation the injured party, but as a punishment to deter others from like conduct.
EvmENCIll AND PRESUMPTION OF MALICE.
A seizure is wrongful if made without proper legal grounds to sustain it, and while malice is to be proved, yet the jury may infer it from evidence satisfying them of the wantonness of the seizure and oppressive conduct on the part of the defendant, taking into consideration all the evidence in the case.
GROUNDS FOR ATTACHMENT-REPRESENTATIONS.
If the affidavit for the attachment was based upon representations made by the plaintiff (defendant in attachment) to the defendant, (plaintiff therein,) or to other persons and communicated to him, the jury should find for the defendant; but on this question they cannot consider representations made to other persons and not communicated to the attaching creditor, for such representations could not have influenced his action.
Joseph P. Hornor and Francis W. Baker, for plaintiff. B. R. Forman, for defendant. PARDEE, C. J. The plaintiff has recovered a verdict against the defendant for the sum of $2,500, and interest, amount of damages Buffered by the illegal and malicious issue of an at.tachment. The defendant moves for a. new trial on severll.l grounds, mainly:
(1) That the court erred in not charging the jury, as requested by defendant, "that in an action for damages beyond the amount of the bond, for an attachment, the plaintiff must prove malice and want of probable cause." (2) Because, if any such charge, or its equivalent, was given, the jury did not so understand it, or disregarded it. (3) Because the defendant was taken by surprise, while being examined as witness, when he was about to state that the other witnesses, Corbin, Hendricks, and others, had informed him that Tiblier had represented himself to be a resident of Texas, he was interrupted by counsel for plaintiff, and he understood the court to exclude such testimony as hearsay; and he was taken by surprise when the court instructed the jury that the testimony of these witnesses" that Tiblier had represented to them that he was a resident of Texas" must be disregarded, unless it had been communicated to defendant; and thus, through the misap*Reporteu by Joseph P. Hornor, Esq., of the New Orleans bar.
TIBLm:s V. ALFORD.
prehension of himself and his counsel as to the ruling of the court,lriNstlce' has been done him. (4) Because the verdict of the jury does not fix the time when interest shall begin to run, nor the rate of interest, and no intereit is allowed on damages eaJ delicto. (5) And because the damages are grossl)' excessive, and no actual damages were proven.
The evidence on the trial tended to show that Alford, defendant, a citizen of Kentucky, made a contract with Tiblier, a citizen of Louisiana and dealing in Texas stock, for the sale and delivery of certain mules, at fixed prices. The mules, when tendered, did not fill the contract Its to quality, and were rejected by Alford, who thei-eupon brought suit in the state court for $1,000 damages against Tiblier for non-compliance with the contract. . Without making due inquiry as to the residence of Tiblier, Alford made affidavit in the suit that TibHer was a non-resident of the state of Louisiana, and made applieation for a writ of attachment, which was granted on a bond for $1,000. Under the attachment Alford caused the seizure of 100 mules, worth about $4,000, and garnished Regan, a debtor of TibHer, for $1,500 more. In addition, as stated in his petition for attachment, he retained in his own hands $315 which he owed Tiblier on another transaction. Tiblier procured the release of his mules on the next day, by giving bond in the sum of $1,500, with two sureties, for whose security he was required to deposit with each $750. He recovered his debt from Regan in about three months, and his deposit back from his sureties-from one in two months, and from the other in a . vear., During the delays in releasing the moneys so tied up by reason of the attachment, his business, proved to have been a profitable one both here and in Texas, was broken up. He paid in attomey's fees $150. On the next day after the attachment he moved for a dissolution of the same on the ground of his residence in Louisiana, and the consequent falsity of the affidavit. This motion was resisted by Alford, and through the delays of the law it was only heard with the merits of the case, and was dissolved for the reasons named when the final judgment was rendered. The defenda.nt recovered $500 damages on his contract with Tihlier, and he swore 'himself, on this trial, that TibHer told him he was a resident of Texas. He also offered a number of witnesses who testified that they had understood from, or had been informed by, Tiblier that he was a resident of Texas. No time was ahown, whether before Alford's affidavit or after, when these understandings were had, or representations were made, but it generally appeared that
there was nothing upon which to base the evidence, more than infer· ences derivtld from Tiblier's business as a Texas stock dealer, and his talk in relation to a ranch and other interests there. The tendency of the whole case was that Alford had sworn out his attachment without inquiry, and recklessly, and had caused its execution in the same reckless manner by excessive seizure of property. No bills of exception were taken on the trial, and no evidence has been offered on this rule, so that, as far as matters took place then, the court can only consider its own notes and recollection. As to the first and second grounds, my recollection is that 1 cha]"ged the jury that this was not an action on the bond given for an attachment, but an action for damages for a wrongful seizure, and if thQ;}' should find that the seizure was wrongful, but made in good faith, they should find for the plaintiff, giving him only actual damages proved; but if they should find that the seizure was wrongful, and made in bad faith or malicious, they might assess proper punitory damages in addition to actual damages proved. Further, that a seizure was wrongful if made without proper legal to sustain it, and that while malice was to be proved, yet the jury might infer it from evidence satisfying them of the wantonness of the seizure and oppressive conduct on the part of the defendant, "and taking into consideration all the evidence in the case." 1 still think this was correct, and the jury fully understood me, and regarded the charge. As to the third ground, 1 am of the opinion there was no occasion for the surprise of either the defendant or his counsel. All the evidence they offered was admitted, and before the defendant testified, on rulingas to the admissions of the depositions to which counsel for plaintiff objected,.1 distinctly stated, and, my recollection is, more than once, that evidence of representations made by Tiblier as to his resi· dence, to other parties than the defendant, could not be received by the jury as bearing on the good faith actuating the defendant in making the affidavit for the attachment, unless it was shown that such representations were communicated to the defendant. The proposition that Alford could not have been influenced by representations he had never heard of, is so self-evident that 1 'doubt if connsel could hitve been surprised even if 1 had not announced it. The instruction to the jury on the subject was "that if they found from the evidence that the affidavit of Alford was based upon representations made by Tiblier to him, or made by Tiblier to other persons and communicated to him, they should find for the defendant; bni
TIBLIER V. ALFORD.
that, on this question, they could not consider representations made to other persons ai::td not communicated to the defendant, for such representations could not have influenced his action." Sp..ch instructions ought not to have surprised the defendant or his counsel, and if they did it would hardly be deemed a good reason for a new trial. And a new trial would hardly help the matter, because all the suggestion of the defendant on the subject, made in his motion or in argument, is that on a new trial the defendant himself would swear that such representations were communicated to him prior to making the affidavit. I recollect that on the trial of the case defendant swore positively that Tiblier had told him that he (Tiblier) resided in Texas, while Tiblier swore that he had told him no such thing. The jury seems to have believed Tiblier. Non constat that another would not do the same. With regard to the fourth and fifth grounds-excessive damage and interest-it has been brought to my attention since the argument that the plaintiff has entered a remitter of $1,000 and all interest prior to date of judgment, reducing the verdict and judgment to $1,500. The actual damages proved by plaintiff on the trial were: the sum paid for counsel fees, $150; interest on $1,500 of Regan for two months, $12.50; interest on $750 for three months, and interest on $750 for one year, $46.87; total, $220.37. The breaking up, for two months, of his business, in the nature of consequential damages, was proved to have been as much as alleged in the petition-$600 per month. These latter damages were properly considered by the jury in making up their verdict, if they found, as they evidently did, that the seizure was wrongful, wanton, and malicious. These damages, actual and consequential, amounting to $1,420.27, substantially compensate the plaintiff, and in my opinion sufficiently admonish the defendant. Exemplary or punitory damages are not allowed for the purpose of rewarding, beyond compensation, the injured party, but as a punishment, to deter others from like conduct. This whole matter is very fully treated in Sedgwick on Damages, chapter entitled "Exemplary Damages." In this case the verdict as reduced, in my judgment, properly vindicates the law and promotes the ends of justice. Let the motion for a new trial be overruled and discharged.
(Oircuit Oourt,. W. D. Tennessee. May 20, 1882.)
ATTAem.mNT WRONGFUL SUING OUT MEASURE OF DAMAGES :MA.LICE AND
The defendant in an attachment proceeding is entitled to recover from the plaintlJf who fails to prosecute his suit with effect the actual damages sustained by him, whether there was any malice or want of probable cause or not; the common-law rule in this regard having no application to attachments under the Tennessee Code, H 3471 and 4289, the defendant's rights being regulated by the statute, and not by the common law. The wrongful suing out contemplated by these sections is conclusively proved by a judgment of the court in favor of the defendant in the attachment proceeding. If there be malice and want of probable cause the defendant may also recover punitive damages. This rule of damages applies whether the suit be upon the bond or an action on the case outside the bond.
Motion for New Trial. Stewart, Gwynne & Co. sued out an attachment in the state court against one Hall, against whom they had a judgment, and levied it on a stock of goods belonging to C. E. Jerman, alleging that goods belonged to Hall, and were fraudulently concealed in Jerman's name from the creditors. Jerman answered the attachment bill, de. nying the fraud and claiming the goods as his own, and on the trial the suit was decided in his favor and the bill dismissed. Thereupon, Jerman brought suit in this court for damages, and has obtained a verdict in his favor for $400. The defendants move for a new trial. William M. Randolph, for plaintiff. Myer8 Sneed, for defendants. HAMMOND, D. J. The exception taken to the charge of thl3 court in this· case is that the jury were told the plaintiff was entitled to recover his actual damages at all events, the question of probable cause being confined solely to the consideration of the demand for punitive damages. This charge was given after mature deliberation and a very careful consideration of the authorities, and upon a review of the subject I am now satisfied it was correct. It must, I think, be conceded that the element of probable cause applies as well to the actual as the exemplary damages in suits for malicious prosecution of a civil as well as a criminal action. The reason of the rule is well understood, a brief statement of it being that-the law protects and indeed encourages a resort to the process of the courts to redress grievances rather than to any other mode, and if one does 80 resort without malice and with probable cause he shall not be mulcted in
JERMAN 'iJ. STEWAR'l'.
damages, either actual or punitive, if from mistaken judgment or other callse he fails in his action. But this must be understood as applying to ordinary actions, or such extraordinary ones as are given to the suitor unconditionally. Whenever a statute grants an extraordinary and it may be harsh remedy, the legislature may attach such conditions as it pleases, and if one resorts to that action he accepts those conditions. It seems to me a wise provision of our statute that gives an attachment writ only on condition that the plaintiff shall pay to the defendant whatever actual damages he sustains if the former fails in his action, and such punitive damages. as the jury may assess, if with malice and without probable cause he sues out the writ. The judgment of the court in favor of the defendant is conclusive evidence of his right to actual damages. On the trial this was conceded to be our law by the learned counsel for the defendants, if the suit be upon the attachment bond; and while on the argument of this motion that concession was somewhat withdrawn, I think there can be no reasonable doubt of it. But thissllit not being upon the bond, the application of the principle is denied; It is a suit upon the facts Of the case, as it may be under our Code, abolishing the technical forms of action. The first count of the declaration' is in the ordinary common-law form to recover damages for the prosecution of an action without probable cause, fl,nd if that had been the only count, and our statute abolishing forms of action did not render it immaterial, it is possible that the plaintiff would be held to show malice and want of probable cause. But the second count states the simple facts,leaving out all averments of malice and want of probable cause; and such an action may be sustained under our system, if the facts justify a recovery in any form. Tenn. Code, (T. & S.) §§ 2746, 2747, 2896, 2975. The principle above stated is very familiar, but the defendant contends that the plaintiff had his choice to sue on the bond and to take under it, or to sue at common law outside of it and take what the law gives him and no more,-namely, such damages actual or punitive, or both, as the jury may assess,-if he proves that the prosecution was with malice and without public cause; and that the abolition of forms of action has not affected this result, as it is not a question of pleading, but of right to recover where there was no malice but was probable cause. This is very forcible, and I came very near yielding to it; but on reflection it seemed to me, and does now, that it is only a very pla.usiblefa.llacy.
When the plaintiff in attachment resorts to that statute he becomes bound by it; he may be bound by the common law as well, but he has no right to the writ unless be is bound by the statute. The object of the bond is to secure that liability to the defendant, but it does not create the liability which arises by the terms of the statute from a failure to prosecute the suit with effect. I put to counsel the case of a plaintiff taking the writ by inadvertence or fraud without giving the bond. Would it in such a case be said that the defendant was deprived of his right under the statute to actual damages, irrespective of malice and probable cause, because no bond was in fact given? I think not, and could not so hold, except under the coercion of authority. The plaintiff should be, on principle, bound without any bond, and outside of it, although his sureties may not be. It is like a cost bond: the plaintiff is bound for the costs without a bond, and no matter what his statutory remedies may be, he is liable in an action of assumpsit or debt, not only for common-law costs, but statutory costs as well, unless, of course, the statute restricts his liability; which it does not in this case. r think the defendant in attachment has three remedies: (1) He may sue On the bond and recover according to its condition; (2) he may sue the plaintiff on the facts of the case and recover according to the statute, precisely as if the plaintiff had given a bond; (3) he may sue for malicious prosecution, as at common law, and recover accord. ing to the common law, where there has been malice and want of probable cause. The whole question turns on the proper construction of the statute. It says the condition shall be "that the plaintiff will prosecute the attachment with effect, or, in case of failure, pay the defendant all and also all such damages costs that may be adjudged as he may.sustain by the wrongful suing out of the attachment." Tenn. Code, §§ 3471,4289. Subsequent sections provide for the procedure, and among other things it is E;)nacted that under certain circumstances, where there has been a default, the defendant shall not be heard to t.raverse the grounds of the attachment, but may "commence an action on the attachment bond, and may recover such damages as he has actually sustained. for wrongfully suing out the attachCode, § 3530. And the following section provides. that "if sued out maliciously, a8 well as wrongfully, the jury may, on thdrial of sp.ch action, give vindictive damages." Tenn. Code,§ 3581. The word "maliciously" here means not only that malevolent intention to
JERMAN 'V. STEWART.
do injury commonly called malice, but also that careless disregard of the rights of others which, without real ill-will, the law implies as malice, and which, in cases like this, is an implication from want of probable cause. It it true, this is a provision for a special case, but it is plain that no intention is manifested, and none could reasonablyexist for providing for a different measure of damages in that case from others. It is, I think, clearly a legislative construction of the statute as to the measure of damagea in all cases, not only under . section 3471, but also under section 4.289, and generally under all our attachment laws. These lrections originated with the Code, and taking the whole legislation on the subject, together with the state of judicial decision at the time, it is quite certain the construction I have given is correct. The Alabama Code, from which ours is so largely derived, and from which the section we are construing was substantially taken, is construed in the same way, and upon the same reasoning I have adopted, in an able opinion by the present eminent chief justice of that state. Tucke'r v. Adams, 52 Ala. 254. A Kentucky statute, which was similarly construed, contained a clause that malice need not be alleged or proved, but the intention of our stat· ute to give the actual damages in the same way, regardless of ice or want of probable cause, is quite plainly if not as certainly apparent. MitcheU v. Mattingly, 1 Metc. (Ky.) 237, 240. Our own decisions have been in some confusion, but a critical examination of them in the light of the changes made in the law of pleading, before adverted to, and of the legislative construction above mentioned, in the codification of the statutes, will, in my judgment, In a suit show that the charge to the jury in this case was upon the bond there can be no reasonable doubt that the measure of damages is as charged in this case. It is settled that the party is not confined to his remedy' on the b"nd. Now, our statutes say in plain terms that all forms of action are abolished, and that "whenever damages are recoverable the plaintiff may claim and recover, ,if he shows himself entitled thereto, any rate of. damages which he might have heretofore recovered in any form of action for the same cause." Tenn. Code, § 2975. Why should there be one measure of damages in an a«;ltion on the bond and another in an action on the case, on the same state of facts, when the right is statutory and both actions depend on the same words? If the, plaintiff were driven to the common-law form o!'action'outside the bond, he must both allege and prove malice and want of probable cause i but he is not so drivenl
He may state the facts,and if they show malice and want of probable cause he can recover either under the common law or the statute, it being quite immaterial which; or, if the facts show neither malice nor want of probable cause, he may recover actual damages under the statute, certainly where he is suing after a default, and I see no reason why there should not be the same measure of damages in all other cases. If the plaintiff alleges malice and want of probable cause, it would, under our system of pleading, be disregarded if he could under the statute recover, notwithstanding these allegations were not proved. Whether to obtain punitive damages he could prove these facts without averring them, need not be decided in this case. The very obligation of the plaintiff is (and this whether he gives a bond or not, for he is not entitled to the writ on any other condition) that "he will prosecute the attachment with effect," or "incase of failure"to so prosecute that he will pay, etc., all such damages as the defendant sustains "by the wrongful suing out of the attachlllent." Here is the legislative definition of "wrongful," which means a failure to prosecute with effect, and we are not authorized in any suit for these statutory damages to import from the common law any element of malice or want of probable cause, for the statute does not require it, and its object is to create a right or remedy, and prescribe its limitations and conditions. It is not dealing with a common-law remedy, norlegislating on a common-law subject. If the statute did not fix. these damages, the defendant in attachment obtain only such as the common law would give him; but such is not his unfortunate condition; he obtains his actual damages at all events, if the plaintiff in this extraordinary and harsh remedy fails toestablishthe frauds he charges injuriously. Under the influence of the 'common law the earlier statutes did not receive this liberal construction,but later they did, by the legislature, if not by the courts, as I have endeavored to show. I shall not take space here to review the decisions critically, but I have read them so, and am content to cite them in support of these views. In Sloan v. McCracken, 7 Lea. 626, the learned judge says the suit is founded· on malice and want of probable cause, but the deci8ionwas that the plaintiff could not recover because he had not shown a judgmentin his favor in the attachment suit. The inference may be that. if he had shown that fact he could have recovered, as the writ. would have then been shown to have been "wrongfully sued ont/', becaus&
,JERMAN V. STEWART.
it had not been prosecuted "with effect." The law may have implied from this failure such malice and want of probable cause as would answer that requirement, as was said in Spengle v. Davy, 15 Gratt. 394; but whether it did or not there would ,have been a recovery if the attachment suit had been decided in favor of its defendant. This is as fair an inference from the decision as that proof of malice and want of probable cause aliunde the judgment for the defendant would have been required. The case does not decide the question here made either way. In Littleton v. Frank, 2 Lea. 300, it is said "the attachment issued wrongfully, although on probable cause." The' other cases are as follows: Lucky v. Miller, 8 Yerg. 90; Smith v. Story,4 Humph. 168; Smith v. Eakin, 2 Sneed, 456; Jenning' v. Joiner, 1 Cold. 645; Ranning v. Reeves, 2 Tenn. Ch. 263; 21 Am. Law Reg. (N. S.) 281. . In the view I have taken of this case adjudications like Sonneborne v. Stewart, 98 U. S. 187; S. C. 2 Woods, 603; Evans v. Thompson, 12 Heisk. 534; Gayoso Ga, Co. v. Williamson, 9 Heisk. 314; Raulston v. Jackson, 1 Sneed, 126;' Pharis v. Lambert, Id. 227; Kendrick v. Cypert, 10 Humph. 290; and Hall v. Hawkins, 5 Humph. 355, which have been so much pressed by counsel for defendants, have no application to a case like this. I am of opinion that there was no error in the charge, and a new trial is refused. Motion overruled.
(Oircuit Oourt, W. D. TBnne88e8. June 10, 1882.) 1. ,
FOR TA.XING-STATE OFFICIALS.
Although the Revised Statutes only mention a fee of 20 cents a folio of 100 words for taking and certifying depositions to be allowed a clerk of the United States courts or a commissioner of a circuit court, and no act· of congress prescribes any fee for any other officer authorized to take depositions, the courts will tax the same fees allowed by congress to clerks and commisaioneis for that service to any state official taking the deposition, and not the fees allowed by the state law for a similar service. '
'2, SAME-ATTORNEY'S FEES FOR
,When counsel, for their mutual convenience, agree that depositions tnkenin a sui,t in the state court between the same parties may be read on the trial pf a in this court, the attorney of the prevailing party is entitled to the tax , fee of $2.50 for each deposition admitted in eVidence, as if it had Ireen hiken in cqurt. ' . '" '
3. SAlm--BILL OF COBTB-VERIFICATION OF. Section 984 of the Revised Statutes, requiring a bill of costs to be verified by the oath of some one having knowledge of the facts, applies to all cases as well as to government cases, and the bill of costs of an official for taking depositil:ms, or making traqscripts of a record to be used as evidence, be so verified before the costs can be taxed.
Motion to Retax Costs. In the taxed bill of costs the following items are excepted to by the defendant as improperly allowed by. the clerk, viz.: Fees of W. W. Thompson, justice of the peace, for taking depositions, $9; and of J. W. Wilson, justice of the peace, for like services, $6.04; and of James Fentress, Jr., clerk of the state court, for certified transcript, $9.25; and the attorney's docket fees for 25 depositions, at $2.50 each, $62.50. The depositions were used under the following agreement of counsel:
,. It is agreed in this ease that the depositions of witnesses heretofore taken in the chancery case of Stewart, rlwynne· & Co. v. G. A. Hall and C. E. Jerman, and now on file in said cause at the chancery clerk's office at Bolivar, or any part or number of said depositions, may be read and used in evidence on the trial of the above-stated cause now pending in the United States court at Memphis, Tennessee, by either party, with the privilege of retaking said depositions, or any part thereof, if it shall be deemed necessary by either party, upon the usual notice in such cases. This September 6, 1880. "C. E. JERMAN, by FALKNER & FREDERICK, Attorneys. "MYERS & SNEED, Attorneys for Defendants."
The items taxed in favor of the justices of the peace are for taking depositions originally filed in this court under an agreement of counsel waiving all objections, and are the amounts entered by those offi· eel'S on the depositions as their charges for taking them, and the item indorseq on the transcript is the clerk's charge for a certified copy of the record of the attachment suit in the state chancery court. Myers et Sneed, for the motion. William M. Randolph, contra. HAMMOND, D. J. The act of congress of February 26, 1853, c. 80, (10 St. at Large, 161; Rev. St. § 823 et seq.,) makes no provision for fees or compensation to other officers or persons than attorneys, district attorneys, clerks of the United States courts, marshals, commissioners, witnesses, jurors, and printers. The next chapter of the Revised Statutes regulates the subject of evidence, and provides for taking depositions where that mode of proof is permitted; but while section 863 authorizes any judge of any court of the United States,
JERMAN V. STEWART.
or any commissioner of a circuit court, or any clerk of a district or circuit court,.or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county (,"lurt or aourt of common pleas of any of the United States, or any notary public to take depositions de bene esse, and regulates the practice with great care; and while section 866 authorizes the court.s of the United to grant a dedimus potestatem to take depositions according to common usage, in neither of these chapters nor elsewhere, so far as I can ascertain, is there any direction as to the fees or compensation to be allowed these officers for taking the depositions, except that by section 828 clerks of the circuit or district courts, and by section 847 commissioners of the circuit court, are allowed "for taking and certifying depositions to file, 20 cents for each folio of 100 words." Rev. St. §§ 828, 847, 863, 866, 858-910. A commissioner under a dedimus potestatem may be an officer of any kind, or anyone not an officer. He derives his authority from the dedimus potestatem, and is not within section 847 prescribing fees for commissioners of the circuit court. I have been unable to find any case furnishing a guide in taxing costs as to these other officers for taking depositions. It is to be observed that a justice of the peace is not one of the officers designated to take depositions by these statutes. He may be empowered by a dedimus potestatem, as anyone may, but he is not otherwise authorized. Under our state practice no dedimus potestatem is required, though one may issue; and all the parties have to do is to give the proper notice or file interrogatories, and the deposition may then be taken before one of the designated officers, according to the requirements of the statute, and be is entitled to a fee of only one dollar in any and all cases. A justice of the peace is one of the officers authorized by the state practice. Tenn. Code, (T. & S.) §§ 3836, 3843, 3844, 3847, 3865, 4551, subsecs. 13, 4549, subsec. 20. Whether this state practice is a legal mode of taking proof in this court or not, nearly all our depositions, as a matter of fact, are so taken, it being an almost universal and commendable custom to agree as to the manner of taking, as was done in this case; and since I . have been on the bench I have never known a motion to suppress depositions for any irregularity in taking them; hence the importance of properly determining the costs to be taxed in such cases. The that an officer will rarely do state fee of one dollar is so more than swear the witness where the deposition is taken without v.12,no.3-18
formality, and written out by the attorneys tbemsel\Tes, which is the usual mode, unless by agreement the writing is done by the officer or some one appointed to do it, and then the expense (which is usually, where the deposition is taken in another state, the fees there allowed) is taxed as costs without objection, as the clerk has done in this case. But the defendants here object, and insist that no more than one dollar can be taxed, and this is the question submitted for determination. In this case the justices of the peace are officers in the state of Mississippi, and I doubt if they are intended to be restrictlild in .this matter to the fees prescribed for like officers in this state. The. Code says nothing about the compensation of officers taking depositions in another state, and the compensation of one dollar is found only in the chapters prescribing the fees for clerks, justices of the peace, and other officers in Tennessee. I am by no means certain that our state courts would hold that no more should be allowed than our own statutes allow here, or that they would not hold that whatever reasonable fees were allowed for the services by the laws of the state where the depositions were taken might be charged as costs in :the case. I am informed by the taxing officers of this city that it is usual to tax whatever reasonable fees are charged in such cases, and that by a sort of common understanding, though not regarded as strictly legal. such is the rule of taxation, controversies being adjusted by agreement, and that there is not known to be any adjudicated case settling the practice. This accords with my own experience in the state courts of this city. I am not satisfied, therefore, that according to the state law these officers would be entitled to only one dollar each for the two depositions taken by them, though I do not feel constrained to decide that point. Prior to the above-mentioned act of congress of 1853, regulating fees, they were taxed according to the state practice as rule of court or constant usage, and where the state laws happened to be silent as to the few items not provided for, the method wa·s to refn to some allowance in the state court "for a service corresponding with the one in this court, a.nd to tax the costs accordingly." Be Oosts in Civil Gases,.1 BIatchf. 652; Pomroy v. Harter, 1 McLean, 44:8; Hathaway v. Roach, 2 Wood &M. 63; Ex parte Pari8, 3 Wood & M. 227; U. S. v. Ringgold, 8 Pet. 150. , But, while this was the rule of taxation, if the state legislature should abolish a previously-existing allowance it was not: binding on the federal courts. Re District Attorney's Fees, 1B.latchf. 64:7.
Where the fees were not precisely regulated they were to be governed on the basis of quantum meruit, according to the analogies for similar services. Bottomley v. U. S. 1 Story, 153. In Fry v. Yeaton, 1 Cranch, C. C. 550, costs of taking depositions by a state magistrate under the de bene esse clause of the judiciary act were taxed, although no act of congress allowed it, because such costs were taxable under the state law. The chief justice held, in Be Clerk's Fees, Taney, Dec. 453, that where the court was authorized to allow reasonable compensation "we must look to what the law allows in similar cases." And in The Antelope, 12 Wheat. 546, it was said that where neithel' an act of congress nor the state law furnished any positive law for compensation, it must be regulated in the discretion of the court, taking care to make it reasonable. I do not wish to depart from the decisions which hold that where congress has legislated and allowed no fees, none can be allowed by the courts on the doctrine of reasonable compensation, and where this plain statute says that the officers enumerated shall receive certain fees and none other, that the courts cannot enlarge them. The Baltimore, 8 Wall. 377; Jonesv. ScheU, 8 BIatchf. 79; Dedekam v. Vose, 3 BIatchf. 153. But here it is obvious that the principle does not a.pply, because these officials are not mentioned in the aot of congress regnlating fees, and the omission to provide for them cannot be taken as an intention to deny them all compensation. Nichols v. Brunswick, 3 Cliff. 88. In Etheridge v. Jackson, 2 Sawy. 598, Judge Deady takes the distinction between the right to costs and the mere mOM of taxing them. In trials at law the former depends on the laws of the state where there is no act of congress, but the latter on the practice of the federal conrt itself. To the same effect are Field v. Schell, 4 Blatchf. 435, and Burnham v. Rougely, 2 Wood & M. 417. These decisions all show that from the first congress ha.s intended that the prevailing party should be allowed his reasonable costs, and a.lthough the act under consideration has prescribed certain fees for certain officers, it has omitted to prescribe for others, and the question is whether we shall continue to look to the state law for our analogies in these cases, as we did before that act, or now look to that act itself where it furnishes the analogy. I see no reason, if congress says a clerk or commissioner shall receive 20 cents a folio for taking a deposition, for holding that if a judge, justice of the peace, notary public, or other magistrate takes it he shall receive less. We never looked to the state law of costs, as I have shown, R.sru1es of positive lawior .our obedience; no a.ct of congress us to do so as to
all costs, though one or two of the earlier acts did as to some; but the right to costs in a particular case being established by state law, we taxed the amount allowed by that law as a matter of convenience in determining for ourselves by analogy what was reasonable to be taxed. But congress having now said that for taking a deposition a certain allowance shall be made to two classes of officers, we have no need to look to any state law for analogies as to others, and should look to our own act of congress where it furnishes one. I hold, therefore, that the proper fees to be taxed for the officer taking depositions in this court are the same fees allowed to our clerks and commissioners for similar services, and this no matter how or where they are taken. The same principle applies as to the fees taxed to the chancery court clerk for the transcript, though there is no embarrassment as to that item because both the Revised Statutes and the Code of Tennessee prescribe the same fee of 10 cents a folio of 100 words for transcripts. Rev. St. §§ 828, 983; Code, (T. & S.) 4551, (35.) But the plaintiff should not be allowed for bQth the transcript of the final decree and the full transcript of entire record. Counsel did not remember precisely how both came to be used, nor does the court, except that upon the ruling made upon the exception to reading only the final decree the plaintiff produced a full transcript. It may not have been necessary, but the exception of the defendants made it prudent, and they cannot now complain. I think, however, it was unnecessary, and the fees of the full transcript will be taxed, but not the other. A further objection is made that as to these costs there is no affidavit attached of the party, or some other person, having knowledge of the facts that the services charged have been actually and necessarily performed as therein stated, according to the requirements of the statute. Rev. St. § 984. It is a mistake to suppose that this applies only to government cases. It is in the original act of 1853, and in the Revised Statutes, by its terms is applicable to all cases, and has been enforced as to fees for taking depositions de bene esse; and where the taxation is claimed for witness fees, under section 983 of the Revised Statutes, the affidavit must show that they have been actually paid. Beckwithv. Easton, 4 Ben. 357. These sections of the Revised Statutes, and the section of the original act, do not in terms include officers taking depositions unless they be clerks of the United States courts or commissioners of the circuit court; but inasmuch as there is no special legislation as to others, and we must refer to these provisions by analogy, as has been shown, for thepnrposes
of determining the compensation, and because it is important that the practice should be uniform in taxing costs, and as it is a matter of practice concerning which we have no positive law, except as declared in these sections, I do not see why the courts should not follow this legislative direction of a rule of practice as to all bills of costs. If one of our commissioners takes a deposition he must make this affidavit, and there is no reason why other officers who claim fees for like services should not be required to make it. But it has never been the practice in this court to swear to these taxed bills of costs, not even by the clerks, marshals, or commissioners, who are plainly required to do SO; because, perhaps, it has been understood that the statute applies only to government cases. This objection is the first ever ma,de on that account in this court, and it comes on a motion to retax the costs after they have been taxed and paid into court. I shall not, therefore, disallow the costs for the omission in this case. The practice of the court has been in violation of the statute in all cases, except government cases, and the statute is only extended to these particular items by a necessary implication and a construction that is now made for the first time in this court. Hereafter, however, if objection shall be seasonably made at the time of taxation, no bill of costs will be taxed without the affidavit required by the statute. The proper practice seems to be to have the officer taking the deposition include in his return a bill of the costs, and the affidavit of-himself, or some one having ,knowledge of the facts, that the amount paid witnesses, and for exemplifications and copies used, if any, are properly entered, and that his own services have been actually and necessarily performed, as therein stated, and from this reo turn the judge or clerk can tax the costs. But the statute permits the required affidavit to be made, by anyone having knowledge of the facts, at any time before taxation by the court. There can be no doubt of the necessity for this in case the official ia a United States court clerk or commissioner, and, I think, for the reasons stated, it necessarily applies to all bills of costs. The fees of a transcript should be verified in the same way. The objection made to the attorney's fees for depositions is not well taken. They were used under an agreement of counsel that they should be, "read and used in evidence on the trial" in this case. The, statute gives to the attorney, "for each deposition taken and submitted in evidence in a cause, $2.50." Rev. St. § 824. This does not mean that the depositions shall be formally taken, and the fees al· lowed only for such as are formally taken, but for those that are
taken in any way and admitted in evidence. The use of the deposition on the trial is what entitled the attorney to the fee. Stimp'son v. B1'Ooks, 8 BIatchf. 456. In' Ex parte Robbins, 2 Gall. 320, the law allowed certain fees for filing interrogatories, the libel and answers which were taxed, where, by agreement of counsel, the case proceeded without the papers being aotually filed. Mr. Justice Story said: "No interrogatories or answers were, in fact, filed; for all patties, for their mutual convenience, seem to have waived any formal prooeedings. The courts have in suoh cases adjusted the taxable costs in the same manner as if these proceedings were formally entered on the reoord apud acta." And in Troy Factory v. Corning, 7 BIatchf. 16, it was ruled that the fee is allowed when the deposition is taken out of court, "under authority which will entitle it to be read a's evidenoe in court." Depositions read from the transcript of the record in the cirouit court, on appeal in an admiralty case from the distriot court, are not taxable; but this is because they were taxable in the district court, and are not entitled to be taxed twice. Dedekam v. Vose, 3 Blatchf. 77. The parties here agreed, for their convenience, to use depositions already taken, and, to all intents and purposes, they stood in all respects precisely as if taken in the usual way, except that they saved the costs of retaking. This fee is not a part of the cost of taking the deposition, but, like the docket fee, is an allowance to the attorney8s taxable costs for his professional services in the case, and unless the agreement of the parties waives it, it is as much taxa.ble as' any other costs. Overrule the objections and conform the taxation to the plinciples here laid down.
NOTE. The supreme court, under an act of congress giving the justices thereof power to prescribe 8 tariff of fees for certain officers in bankruptcy, have, by general order No. 80 in bankruptcy, allowed to registers for taking depositions 20 cents a folio, the statute giving them" the fees now ,allowed by law:' Rev. St. §§ 5124, 5127.
BOSTON B}j:JllF .PAOKING BOSTON BEEF PAOKING CO.
STEVENS' and others.
March 27, 1882.)
(Circuit Oourt, 8. D. New York.
TORTS-LIABILITY FOR INJURIEs-REPRESENTATIVE CHA.RACTER.
An action cannot be maintained against an executor or trustee in his representative character for a wrongful act which was not committed by hun in his official capacity. 2.
8AME-WRONGFUL USE Oll' ONE'S OWN PROPERTY.
Whoever, for his own advantage, authorizes his property to be used byanother in such manner as to endanger and injure, unnecessarily, the property or rights of others is answerable for the consequences whether the injury be caused by negligence or by the erection of a nuisance. 8.
8AME-lNTERP08ITION 011' THIRD PARTy-NOT TO ExCUSE.
The mere fact that a third person is interposed between the owner or principal and the party injured will not affect the responsibility of him who originates and sanctions the injury.
011' UNFIT AND UNSAFE BUILDING.
Where a party leased a building 88 8 storehouse which was unfit and unsafe for use as a storage warehouse, and it fell without any fault contributillg to the fall on the part of the lessees or of the plaintiff, thereby injuring the house of the plaintiff, which was adjoining thereto, such lessor is liable for the injury.
WALLAOE, C. J. The defendants are sued personally, and also in their representative capacity as executors and trustees, under the will of Calvin Stevens, deceased, for damages alleged to have been sustained by the plaintiff by the fall of a building owned by the defendants as such executors and trustees, and which had been leased by them for a storage warehouse. The jury found for the plaintiff, and under the instructions of the court their verdict established two propositions: Fir8t, that the building was unfit and unsafe for use as a storage warehouse at the time the defendants let it for such use ; and, second, that the building fell without any fault contributing to the fall on 'the part of the lessees. The plaintiff was the occupant of an adjoining building, and the verdict of the jury further established that there was no contributory negligence on the part of the plaintiff. Upon what theory the defendants were sued in their representative character, and by what rule law their liability in such character can be sustained, has not been satisfactorily shown. The question was reserved upon the trial, but no authority has been adduced to change the opinion expressed by the court upon the trial, that an action cannot be maintained against an executor or trustee in his representative character for a wrongful act which was not and could not be committed by him in his official capacity, but which, because it was a wrongful act, was in excess of his authority.