when the attendance of the witness to testify is procured in this quite 'common way. It must often happen that exigencies arise when a subpuma may not be seasonably procured, and delay and inconvenience would result to the court and the parties in proceeding with the trial. . The argument ab inconvenienti is of considerable weight in the construction of statutes, and especially in doubtful questions of practice arising thereunder. It 'seems to me that the adoption of the opposite construction is a voluntary tying of its hands by the court where freedom is open. The general sense of equity on which costs are given by statute applies here in full forGe in favor of the successful party. No injury can happen, but in fact the costs are lessened, and there is certainly nothing of which the other party can complain. I think the statute is susceptible of a construction which is in harmony with reasonableness and convenience, and, I shall therefore adopt it,and direct that the item in question be taxed.
WINEGAR v. CARN and others.
w: D. Michigan, S. D.
DEPOSITIONS-COSTS-ATTORNEY'S FEES-DEPOSITIONS TAKEN FOR ANOTHER CASE USED BY STIPULATION.
Attorney's fees for depositions taken in a former case, on behalf of plaintiff m the former suit, and, by stipulation of attorneys, read upon the trial of a Jater suit in which the former plaintiff is defendant at suit of another plain· tiff, cannot be taxed as costs by plaintiff in the latter suit, he having incurred no liability in procuring said depositions.' A deposition, when taken. is common property, and may be used by either party.
Motion for Retaxation of Costs. Fletcher &; Wanty, for plaintiff. Turner ,&: Carroll, for defendants, SEVERENS,J. A motion is made by the defendants in this cause for retaxation of costs. The question arising on the motion relates to the taxation by the clerk of 14 attorney's feesi of $2.50 each, for depositions read and used upon the trial of the cause. It is claimed by counsel for the defendants. that they should not have been allowed. The facts on which the point arises are these: In a former case in this court in which Cahn et at., the present defendants, were plaintiffs against Monroe, the fanner marshal of this district, as defendant, these depositions were taken on behalf of the then plaintiffs, their attorneys being the same as now, and the attorneys for the present plaintiff having been also attorneys for the defendant, Monroe. Ante, 675. On the trial of the former case these depositions were not in fact used, the court having disposed of the case upon the trial upon a point not involving the merits, on the opening statement of the attorney for the plaintiffs. On a motion for retaxation in, that case before me, I sustained the action of the clerk in disallowing
WINEGAR V. eARN.
the attomey'sfees for these depositions, upon the ground that they had not been used upon the trial,and did not pass upon the question whether in any case attorney's fees could be taxed in favor of the party against whom the deposition was taken. Bya verbal stipulation between thit attorneys in this case these depositions were read upon the trial thereof, and now the attorneys for the plaintiff seek to tax the fees for the depositions. As an original proposition, my opinion would be strongly against the allowance of these fees, upon the ground that the depositions were not taken in the case; but counsel for the plaintiff cites and relies upon a case in 12 Fed. Rep. 271, (Jerman v. Stewart,) which seems to militate against that conclusion. In that case the depositions had been taken in a cause depending in It state court, and were by stipulation "read and used" in the case in the federal court, and it was held that attorney's fees therefor were taxable. It is an object much to be desired that uniformity of construction of the statutes should prevail in all the courts, and I am sorry I cannot see my way clear to follow the case cited. From the repc#rt of that case it does not appear that Jerman, the plaintiff, in whose favor -the attorney's fees were taxed, was a party to the former suit. Hence the depositions were not taken in his behalf, nor was he subject to the expense of taking them either for direct or cross examination. It was laid down in that case, apparently as a principal basis for the ruling, that it was the use of the depositions upon the trial which determined the right to tax for them; and the case of Stimpson v. Brook8, 3 Blatchf. 456, was cited in confirmation of that view. But on looking at that case it will be seen that the court did not affirm that as the only prerequisite, but simply as completing the right to tax for the depositions; and the expression in the opinion relied upon was used as part of the argument leading to the conclusion which was arrived at upon the point actually decided, which was that affidavits (treated as the equivalent of depositions) used on a preliminary proceeding in the case, but not upon the final hearing, were not taxable under the statute. It was in this connection that the' court said that it was the use upon the trial that determined the right. And in the present case it appears obvious that the expenses incurred in taking these depositions were incurred on the direct by Cahn et al., and on the cross by Monroe. If Monroe has not already settled his liability, that is a matter between him arid his attorneys or others. Winegar incurred no liability on account of the taking them. How, then, should he be entitled to tax costs therefor? It would seem unquestionable that the intention of the statute was to compensate for the taking the depositions. It may be that the statute may be fairly construedto apply so as to give such costs to a successful party whose attorney has attended to the taking of depositions which have been taken at the instance of the other party, and used on the trial. A deposition, when taken, is common property, and may be used by either party. The statu'tes in relation to costs in the federal courts ought certainly to receive a fair and reasonable interpretation, and, as I think, a liberal
'one, in those directions in which they aim at. cases and circumstances of moral justice and equity, not, however, transcending the bounds of settled principles of construction. The costs in question are not, in my the express terms of the statute, or within the opinion, either limits covered by any possible interpretation of it. They must therefore be disallowed. .
(Oirtl'Uit Oourt, 8. D. NetD York.
CUSTOMS DUTIES-REV. ST.
January 81, 1887.)
U. S. §§ 2931, 8011, 8012. A suit .IlE ainst a collector of customs, to recover duties under section 2931, Rev. St.U. S.. was brought in time as to two importations, but prematurely brought as to a third importation, iJ;l that 90 days since the appeal required by that section had not elapsed, and no decision of the secretary of the treasury made; and as to a fourth imJlortation, in that no such decision, or an appeal or protest,_ also required by that section, had been made. Subsequently to the commencement of this suit such protest. appeal, and decisions were made. Thereafter plaintiffs' complaint and hill of particulars and defendant's answer were served. The collector refunded the duties sued for as to the first two importations, but refused to refund those sued for in case of the last two importations, 80lely on the ground that as to them suit was prematurely brought. Held, that a recovery in the suit upon the last two importations was authorized by sections 2931, 3011, 3012, Rev. St. U. S., when construed together.
'ibis action was commenced June 30, 1881, to recover alleged excessive duties exacted of the plaintiffs by the defEmdant. as collector of customs, upon four importations of sugar made by them by the steamer Newport, March, 23, 1881; the Giles Loring, March 14, 1881; the Niagara, April 28,1881; and the Venerata, May 31,1881. The grades or Dutch standards in color of these sugars, according to which sugars were dutiable under the provisions therefor contained in Schedule G of section 2504 of the United States Revised Statutes, were determined by the collector as shown by chemical tests or by the polariscope, and the duties on the sugars accordingly exacted. In the case of the Newport, liquidation of duties was made April 29, 1881; protest and appeal; April 30, 1881; and decision of the secretary. May 27, 1881. In the case ofthe Giles Loring, liquidation was made April 21, 1881; protest and appeal, April 25, 1881; and secretary's decision, May 27, 1881. In the case of the Niagara, liquidation was made May 24, 1881, payment in part, April' 28, 1881, and in part, June 2, 1881; protest and appeal, May 27, 1881; and secretary's decision, July 18, 1881. In the case of the Venerltta, liquidation was made July 2, 1881; payment, May 31, 1881; protest and appeaJ, July 8, 1881; and secre· tary's decision, July 23, 1881. The plaintiffs' unverified complaint, (served August 19, 1881,) after alleging that defendant was collector of customs; that plaintiffs were