".,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.
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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.
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NEW YORK BELTING & P. CO. V. NEW JERSEY CAR SPRING" R. CO.
NEW YORK BELTING
PACKING CO.i,,;NEW JERSEY CAR SPRING & RUBBER CO.
(Oircuit Oourt, 8. D. New York. November 19, 1887.)
On the overruling of a demurrer, costs were duly taxed against the defend· costs. ant. SUbsequently, after final hearing, defendant, in taxing the bill sought to recover certain items contained in the bill taxed against it on the demurrer. Held. that this was an e:lIort to reclaim costs imposed on defendant as a penalty for serving an insufficient demurrer, and the items should be disallowed.
Rev. St. U. S. § 824, provides that on a trial before a jury in civil or criminal cases, or ona final hearing in equity, a docket fee of $20. shall be allowed. The case was dismissed on demurrer. with usual costs. and the docket fee was included in the bili of costs. Beld, that the docket fee must be disallowed. Following Ryan v. Gould, ante, 7M.
Turner, he &- McClure, for complainant. Brie8en <fc Steele, for defendant..
LACOMBE, J. In this case the complainant originally commenced suit in the district of New Jersey by filing a bill of complaint, to which a demurrer was interposed, and which was duly set down fOr argument. Subsequently, in View of the condition of the calendar in that district, it was stipulated between the parties that the suit bedisoontinued therein, and a new one brought in theSouthern district of New York, upon similar pleadings, to be filed in this district,the demurrer to be considered as set down for argument. These stipulations were carried out. The demurrer was argued,andoverruled the order directing "that complain.. ant recover ofthe defendant its cost in this suit to be taxed, and the defendant be, and it hereby is, assigned to answer within ten days from date hereafter.» ( The bill of costs on the demurrer was duly taxed, including items for filing bill, issUing subprena, and marshal's fees for serving subprena, in the district of New Jersey, and fee for filing the bill in the the Southern district of New York. These were paid by the defendant, and upon the bill of costs now sought to be taxed by it claim is made that these three items, and the expense of printing the brief OIl demurrer, should be allowed to the This is, in effect, but an to recover from the complainants some part of the very costs which 'were imposed upon the defendant as a penalty for serving a demurrer, which the court held to be insufficiElht. They should be disallowed. The item for docket fee allowed to the defendants Should also be disaIlowed, for the 'reasons set forth ina memorandum filed this day in Ryan v. Gould, ante, 754.
SHERMAN fl. HEDDEN.
S. D. New York. November 7,1887.)
Where the bill of particulars served by plaintiff in a suit against a collector of customs, to recover duties alleged to have been illegally exacted, does not all the items required by section 3012. Rev. St., a motion for judgment of non pro8.will be granted. (SyllabU8 by the Oourt.)
CUSTOMS DUTIES-AcTIONS TO RECOVER-BILL OF PARTICULARS.
Action to Recover Excess of Duties Paid under Protest. On motion for non pros. . . . Stephen A. Walker, U. S. Atty., and W. Wickham. Smith, Asst. U. S. Atty., for the motion. Wm. F. Scott, contra.
LACOMBE, J. In this case defendant moves for a. judgment of non pr08. on the ground that the bill of particulars heretofore served in this action, in compliance with section 3012, Rev. St., is insufficient and defective, in tllat it. does not contain the name of the importer or importers, the place from which the merchandise was imported, the date of the invoice, and th,e date of the payment of the duties claimed to haye been exacted in excess. In to the motion, plaintiff's attorney presents an affidavit of his clerk stating that, "through some inadvertence or oversight, he omitted to insert" in the bill of particulars the details above set forth, and upon the argument plaintiff applied for leave to amend the bill nunc prQtunc. The papers in this case present no more excuse for plaintiff's failure tocomply with the express requirement of the statute than was presented in Dieckerhoffv. Robertson, ante, 73, and should be denied. Upon the argument, reference was made to the subsequent granting amendm.ent of the bill of particulars in the case last of an order cited. Such order, however, is not authority controlling ih future cases, because, at the time it was granted, the representative of the district attorney expressly stated in open court that, the question of power to grant leave to amend being decided against him. he had nQthing further to say in opposition to the application. It should be further noted, with regard to Dieckerhoff v. Robertson. that the application in that case was simply for leave to: alter the amounts claimed as excess of duty, aml that it was stated; and not disputed, upon the first argument of the motion, that the figures were given erroneously in the original bill because the plaintiff had relied upon a statement furnished from or obtained at the custom-house as to the exact amount of excess, which official statement was itself erroneous.