ing the prevailing party. Of course, the last decision cited fits the entcase, as there were two trials in the present case before a jury. It seems to me, also, that the statute does not make the docket fee to de-, pend upon whether the verdict rendered stands or is set aside. It allows compensation to the attorney for services rendered on each final hearing of a case, and, as there have been two trials in this case, two docket fees should be allowed. I was at first disposed to take the view that this case wlts distinguished from the case of Schmieder v. Barney, in that there were crossjudgments in this case, the plaintiff not having succeeded in maintaining his claim to all the property for which he sued. I think, however, that that view is inadmissible. The logical result of that view of the case would be that in this instance there was no prevailing party, and that no docket fee could be taxed. I think in a law case, where there is a final trial before a jury, a docket fee is always to be taxed, and that the .court must determine who is the prevailing party. In as the plaintiff recovered seven-eights of the property claimed, and as the defendant conteeted his right to any of the property, the plaintiff should be esteemed the prevailing party to the same extent as if he had sued for $800, and; had only recovered $700. A docket fee should be taxed for each trial, and it will be so ordered.
CENTRAL TRUST Co. OF NEW YORK and others tl. WABASH, ST. L. & P. Ry. Co. and others. (Intervening petition of GILLILAND.)
(Oirouit Cowrt, B. D. Mi88ouri. October 29, 1887.)
A Solillitor for an intervenor in an equity case. who prevails in such intervention;' is not entitled to a docket fee of $20, under the provisions of section 824 of, the Revised Statutes of the United States. .Such a termination of the intervening cause is not "a final hearing in equity," within the meaning of said statute.· .
A I!pecial mal!ter in chancery is not a "referee, "within the meaning of said statute.
. Such fees are not recoverable in such cases at common law, or under the statutes of the state of Missouri.
In such a case the intervenor is not entitled to recover a fee of $2.50 for each deposition taken and admitted in evidence, under said section 824 of the Revised Statutes of the United Statel. (Syllabus by (he Court.)
On the twenty-seventh of September, 1886, the intervenor filed his petition in the. above-entitled cause, claiming damages against the receivers for the burning of hay, fencing, and injury to meadow land, alleged l1ave been caused on the thirteenth day of August, 1886, by ,
Cl<,NTRAL TRUST CO. V. WABASH, ST. L. & P. RY. CO.
the negligent operation on the part of the receivers of the 10coI)J.otive at, tached to freight train No. 22. The petition was -afterwards heard fore Hon. E. T. ALLEN, who had theretofore been constituted special master in chancery in a suit to foreclose a mortgage on the Wabash, St. Louis & Pacific Railway, for the purpose of examining and reporting upon such claims, and other preferential demands against the mortgaged property, tQat might arise in the course of the proceeding. .The special master, on the twenty-second day of June, 1887, found the issues in favor of intervenors, and recommended an order of court, directing the payment of the claim. No exceptions to this report were ever filed by the intervenor or the receivers, and upon the twelfth day of September, 1887, such report was filed and confirmed by the court. On the fif-. teenth day of October, 1887, the intervenor filed a motion praying for the retaxation of costs in said cause, and for the allowance of the following fees: (1) A docket fee of $20 in favor of the solicitor for intervenor; (2) a fee of $2.50 for certain depositions taken and admitted in evidence. Such allowances were claimed under section 824 of the Revised Statutes of the United States. . . H. A. LoPAJy, (Jame8 Carr, of counsel,) for intervenor. George S. Grover and Elen(i,oU8 Smith, for receivers.
J. Gilliland in the Wabash Case, a motion to retax the costs in that proceeding has been filed, and the point presented is whether the attorney for the intervenor in that case is entitled to a docket fee of $20, and whether he is entitled to $2.50 for each deposition taken and used in the case on the hearing. Vide section 824, Rev. St. U. S. The trial Dnaccount of which the docket fee is claimed was before a special waster in chancery appointed in the course oia chancery suit, to audit and allow certain preferential claims against the property in the hands of the court through its receivers. There was a report in favor of the intervening p()oo titioner. The character of the claim was this: It was a claim for damages sustained by the intervenor by the burning of certain hay and fences, which were set on fire by sparks from a locomotive attached to a freight train which was being operated by the receivers. The statute,§ 8U. allows a docket fee of $20 to be taxed "on a trial before llo jury in civil or criminal causes, or before referees or on a final hearing ip equity or in admiralty." It is clear that there was no trial in this instance fore a jury in a civil or criminal cause. It is also clear that the trial was not a final hearing of an equity or admiralty case. The hearing was had npon an incidental or collateral issue that arose in the progress of a foreclosure suit,. The claim can only be sustained, therefore, upon the ground that it was a trial before a referee within the meaning of the ute, and that,I take it, iS,thesole question to be determined. In my judgment the word "referee," as used in this stat)1te. ence to a class of officers who are appointed in pursuance of the statutes of the various states, to hear and determine all or a portion of the issues that arise on the final hearing of a cause,-it does not have reference to
THAYER, J., (orally.)
In th\:l matter of the intervening petition ofR.
whether they hold their place byageneral app6iritn:lt1l1 1ibyl aspeciltJ'app'ointment I think that is the view it that has generally beeri takendfthat section. . In the casedf1Joughtyv.Manufacturing 00.) decided by Judge WOODRUFF, (reportedih4':Fish. 818,}the court seems to have been of the that the term "referea, "as used in the statute, did not include masters in'cpaneery. It was fu'rther of the opinion that even iUhe word "referee" should be given that enlarged construction, a docket fee would not be taxable for It trial or,hearing had before a master on a matter arising incidentally or collaterally in the progress of a' case. In the case of Dedekam v. Vo$e,. 3 Blatchf. 154, it was' said that the statute (referring to section 824, Rev. St. U. S.) does not have reference to hearings that are interlocutory or collateral. ' In the case of Beckwith v. Eastm'i, 4 Ben. 358, it was held that no docket fee could- be allowed on the trial Of exceptions taken a' commissioner's report. ., , In thA case of Stimpson v. Brooks, 3 Bhi.tehf. 456, it was held that a fee of $2.50 for depositions, taken and admitted in evidence,could not be allowed unless they were taken and used on the final hearing of the case. It was further said in that case that the statute has direct relation to proceedings which are "final," and not to such proceedings connected with the case as are incidental or collateral only. " In the case of Spill v. ManUfacturing Co., 28 Fed. Rep. 870, it was held that depositions taken, not 'for use on final hearing, but in a contempt proceeding; are not within the statute, and that the statutory fees therefor'ate nbt taxable. I take it, therefore, that the fees claimed in the present case are not within the statute. Neither clause of the statute covers the case, or warrants the' court in taxing either a docket fee of $20 for 'the attorney or a fee for depositions, as claimed. As this is an equity proceeding, however,in which the intervenor had occasion to come into court, and ask that his rights' be protected, I think it is within the power of the court to allow him all. of his reasonable and necessary costs in obtaining testimony for the support of his claim, and therefore he Should be allowed ,otIl the costs incurred in taking depositions which were used to maintain his claimlother than an attorney's fee therefor. He should also be allowed his witness fees. Ifiild; upon looking at ·the master's report, that suchl1110wances were made; The expense of taking depositions was taxed and allowed, and also the' usual fees for 'all of his witnesses. Of course, at common law, an attorney was notetltitled to have a. fee taxed, in this state' it is not the practice to alloW-an' attorney's fee to be taxed in II; (Jase. I think the master has allowed the intervenor all the costs that he is entitled to; He has allowed all that could have been recovered in the' state court if the suit had been there tried. The motion . to retaX is ovetruled.
.j ' .' ,:
YANCY, Assignee, v. COTHRAN and others. 1
N.D. Georgia. May 9, 1887.)
BANlmUPTcy-ACTION BY ASSIGNEE-LlMITATION.
The complainant,an assignee in bankruptcy, :filed a bill, the object of which was, to recover against thejeme defendant certain shares of stock alleged to h!love been transferred to. her in fraud of the rights of her husband's creditors. It aPPeared of action existed when the assignee was. appointed, and that the complainant as counsel' had reptesented one against whom the lemed,efendant had brought suit concerning this stock, and tbat in that pr.oceeding SUCh information o,f tlile transfer had been disclosed which, if diligently pursued·.wouldhave led to the discovery of all the facts constituting the fraud, ata period more than two years before the bill in this proceeding had been :filed. Held, that the suit was barred by Rev. St.U. S. § .5057, Which provides that "no suit' * * * .shall be maintainable * * * between an assignee in bankruptcy and a person claiming an adverse interest ·touching any. ,rights .of .property transferable to or vested in such assign'ee" unless brought within two years from t.he time when of action accrued" "
In Equity. On plea of stattlte of limitations. Feather8fnne, Alexander k Wright, W. W. Brooks, and Hopki1UJ.« Gkrm, for .... ...' . .. D. S. Pnnt:vp, W. H. Underwood, and Kitngo.. Spalding, for respond-ents·. NEWMAN, J. Thill is a pill filed by Yancy, as assignee in bankruptcy ·of the firm Cothran &.)"ackson,composedof H. D. Cothran aqd J. N. Jackson,againllt Mrs. Laura Cothran, her husband, H. 1>. Cothran, and others.. The:object oithe bill ill to recover frOlD Mrs. Cothran 232 shares ·of the capital stock of the East Rome Town OOmpany. The facts .upqn :Which thi!,? right to recover. is based are substantially as followll, as 1;>y th.epleadings and evidence: In April, 1874,. H. D.Cothran w,as the owner, in, his own right of stock ,in question. He },lad previously, in 1873, failed in business as a of the firm of .& Jackson. At time named, in April, 1874, Cothran transferred the .stock 4c; J"ackson, which firm it would seemwas then endeav. wind up its'old business, The was pledged by Cothran & .Jackson to the. B/l.nk of Rome as security the loan of .$3,500. In August, :note for $,3,500 was due, Q.nd the firm had not ,met it. H.D. Cothran.wRs the president and manager of the Bank of Rqme, the .stock of being all owned, or practically so, by the firm ofOgden Brower, of New this time H. D. Cothran went t9R. F. Fouche, and.lltatlild to him facts the hypothecation of the stock ; that the debt was due; and that Cothran & Jackson were unabl!l tp pay it. Hetold Fouche that he and the cashier of the bank, C. O. Stillwell, .bad tried to sell ,the.stock,but could not get an offer for. it. Stil,lwell told Fouche the same thing.; Cothran tl;1.en,asked· Fouche if he would ,give his note at ..90 days, take a transfer of the stock, agreetha.t;Mrs.