FEDERAL RErORTER. AMERICAN DIAM01'lD DRILL CO.
SULLIVAN ,MACHINE Co. February 20,1885.)
(Oircuit (JOU1't, S. D. New York.
PATENTS FOR INVENTIONS-INFRINGEMENT-COSTS.
Where the witnesses who appear before the master for the purpose of furnishing an account are officers of a defendant corporation in an infringement suit, which has been ordered to render such, account, they are not entitled to mileage and Plfl' diem fees:
Where the decree of the circuit court :finding the defendant guilty of infringement, and ordering an account, is set aside upon rehearing, or upon tinal decree, with costs, master's fees paid by the defendant for the account· ing should be taxed against the plaintiff as part of the costSj but the allowance is to be made by the court, not by the clerk. See 21 Fed.
In Equity. On appeal from clerk's taxation of costs. Rep. 74. l!.l1mund Wetmore, for plaintiff. E. T. Rice, for defendant.
SHIPMAN, J. This appeal from the taxation of costs involves divers different items, of which two only need special mention. The first is the per diem and the mileage of the officers of the defendant, while testifying before the master. They appeared before him in obedience to, the order that the defendant should account, and for the purpose of furnishing the account. I concur with the clerk that they are representatives of the defendant, and for this reason stand upon a different footing from its other witnesses; and that the items should not be taxed. The principal point is in regard to the disallowance of $990, master's fees, which had been paid by the defendant. The clerk is correct in the position that, as taxing officer, he ought not to include this item in the costs without an order or direction of the court to that effect; the question being one for the court to determine. No order. in regard to this sum had been entered. The practice in regard to repayment of the money which had been paid by the defendant to the master, as a part of his fees, when the decree against the defendant is reversed, and a final decree is rendered in his favor, is stated by Judge BLATCHFORD in Myer8 v. Dunbar, 12 Blatchf. 380, as follows: "If the defendants succeed, as against the plaintiffs, in reversing the decree, they will, indeed, not be able to recover back any money from the master; but it will be competent for the court, if, on such reversal, costs of the suit shall be awarded to the defendants, to reg-ard the amount paid by the defendants to the master as a part of such costs, and to enable the defendants to recover such amount ffom the plaintiffs. The amount disbursed by the defendants to the master will merely take its place with other items of disbursements, as to which the defendants, with a decree against them, now have no recovery. but which may form part of a recovery, in case they shall have a decree in their favor."
JOICE V. CANAL-BOATS NOS. 1,758 AND 1,892.
'the plaintiff's argument, that the accounting was prolonged, and that the master's fees were much enhanced by the defendant's reluctance to give promptly the necessary information, and that, therefore, the defendant ought not, in equity, to be repaid this disbursement, has some force; but I have been more impressed by the fact that, as a result of the late decisions of the supreme court, the defendant is successful, and by the consideration that it should reap the benefits of success. I see no controlling reason why, upon a finding that it never was an infringer of the patent, as properly construed, it should pay the master as though it had been an infringer. The sum of $990, disbursed by the defendant, by order of court, to the master, should become a part of the costf', and should be added to the $766.43, as taxed by the clerk. I concur with the clerk in his taxation of the other items in dispute, and in the reasons which he has given therefor, in the statement annexed to the bill of costs.
JOICE 'V. CANAL-BOATS
Oourt, 8. D. New York. June 17, 1887.)
AnmRAt.TY PRACTICE-RULES f5, 59-PROCEEDINGS IN REM-IN PEnsOlllAllWHEN JOINED.
Under the fifty-ninth admiralty rule, the owner of a vessel which has been libeled in rem, for collision, may, by petition, bring into the suit, by process in personam, any other parties, who are not owners of the vessel libeled, alleged to be liable for the same collision. Rule 15. by implication, prohibits only the joinder in a collision cause of a vessel and her owners as co-defendants.
CASE STATED-VESSELS SUNK-WHARFINGER-Co-DEFENDANT.
Where the libelant's vessel, in landing at a wharf, ran upon two vessels recently sunk, which he libeled for collision, and the claimants of the vessel sued brought in the wharfinger as co-defendant, by petition under the fifty-ninth rule. that he caused the vessels to be sunk by negligently mooring, and leaVIng them unprotected, andgivingno notice of the danger, held. that the case was within the general scope of the fifty-ninth rule, and was not forbidden by the fifteenth rule, and a motion to set aside the proc68&- and service was denied.
In Admiralty. On motion to set aside additional process. Hyland &: ZabriBkie, for libelant. Ander80'1i. &: Howland, for claimant·
.;.BROWN, J. Upon the arrest of the two canal-boats named in the libel in a cause of collision, the libelant's vessel having run into the said boats in making her landing, as they lay concealed near a dock at Yonkers, the owners and claimants of the two sunken boats filed a petition, under the fifty-ninth supreme court rule in admiralty; alleging that Peene Bros. were the proprietors of the dock, and were the parties through whose negligence j.he boats were sunk, by mooring them improperly and leav-
lReported by Edward G. Benedict, Esq., of the New York bar.