mLL 11. SMITl'L
HILL 11. SMITH.'
(OlrtJ1tit OO'lJrl, E: D. PennaY[fJania. November 11,1887.)
CoSTs-REFERENCE-MASTER'S FEES-KNOWLEDGE OIl' PARTY·
.The costs of a reference to a master, to ascertain the damages resulting from an infringement of a patent, will be put upon the complainant when damages are refused, if the complainant knew, or could have known, all that was brought out by the rf;lference, and the respondent has done nothing that would deceive the complainant, nor concealed facts. .,
In Equity. Sur exceptions to master's report. This reference grew out of a decree which had been .entered in a suit brought by the cOlnphtinantagainst the respondent for infringement of 'the second chUm ofletters patent No. 130,853 for improvement in hogrings, (see 27Fed. Rep. 560.) Complainant then had the case referred to a maSter, to aSBeSS the damages, who made a report in which he refused damages to the complainant, and put the costs of the reference upon the respondent. To this finding of the master respondent excepted. Morgan« Lewis and W. C. Johns, for complainant. R. O. Moon and E. P. Bliss, for resporident.
BUTLER, J. The complainant should have costs to date of the decree, entered April 30, 1886. To that point of time he was successful. The costs subsequently created, arose from the prosecution of his claim to damages. IIi making this claim he was unsuccessful. In view of the circumstances, he should bear the costs created by pressing it. The result shows that they were unnecessarily incurred. If he had been deceived .or misled, or by other means induced by the respondent to set up and prosecute the claim, .a different view might, and no doubt would, be entertained. The complainant knew, however, or might have known, before entering upon the subject, all he knows now. He took the chances, and he must bear the consequences. The second exception (to the proposed decree) is for these reasons lUItained. The others are dismissed.
'Reported by O. Berkeley Taylor, EIq., of &he Philadelphia bu.
".,GouLD and another.
November 19. 188'7.>
,(OircuitOouf't. 8. D. New!ork.
COSTS-IN FEDERA.l; CoURTS-DOCKET FEE.
Rev. St. U. 8. § BU, pr9vides that on a trial before a jury in civil or criminal cases, or on final hearing in equity, a docket fee of $20 shall be allowed. Aft.er the usual pleadings were filed. and, issue joined. the case noticed for final hearing, and called on the cl\lendar. motion, his bill was dismissed "with the usual costs to defendant." The clerk allowed $20 docket fee on taxation of costs. Held, that the docket fee must be disallowed. The clllrk in taxing costs where complainant on his own motion dismissed called for hearing "with usual cOllts to, defendant, " allowed, f.or his bill certi1l.ed copy of file wrapper, contents of patent in suit, and certified copies ,Of six othllr patents prooured by defendant to properly present his defense. Held, that they must be disallowed. ,Woodruffv. Bdtrn.ey, 2 Fish. Pat. Cas,2l)O; 28 Blatchf. 129, 2jl Fed. Rep. 49, followed.
,. SA.ME-MOTION TO DISMISS, BY PLAINTIFF-"USUAL COSTS."
Steele, for defendants.
,-", .':' t j
· ,: " ; , ', ' , .,"'
J. In this cq.se issue was joined by the filing of th,e ,usual replication, the pleadings consisting of bill, answer, and replication. Afteft thf) hearinK, apd in fapt palled! on the G&'e ndar,, au order w\ls. made on the of tl\6, the. bill "without prejudice totpe "oomplaiuant's, or his rights, ,tJ;!,e usual costs to the .. " . , .defendantt;l.'1 upon taicationof defendants' bill of coats, allowed a docket :fee, The que,stiqn upon this ·.is ,,'hether,. ,':l.uder .1SeQtic:m such ,.doplwt fee is properly p:,.ftal:>le. "The decisions upon t,hi,s poipt ,1lIe nllmerous,an,d confl}cting. Illthe JHQge- HA}'tI¥9ND in Partee v. 429, I entirely concur; decisions in this circuit are ;c9nand, the docket must be disallowed. Manufacturing Co. v. Colvin,21 Blatchf! 168, 14)fed. Rep. 2q9; Andrews v. Cole, 20 Fed. Rep. 410; Worster v. Handy, 23 Blatchf. 112, 23 Fed. ")" Ie- ,;("",.",,; ,,,,, Rep. 49. The allowances made by the clerk for certified copy, of file .wrapper, and contents of the patent in suit, and for certified copies of six other patents procured by the defendant to enable him to properly present his defense, are also covered by the decisions in Woodruffv. Barne:y, 2 Fish. Pat. Cas. 250, and Worster v. Handy, 23 Blatchf. 129, 23 Fed. Rep. 49, and are disallowed.
,0 ". ,