he endured consequent upon his removal. I do not mean to say that that pain and suffering and injury which would come in the natural course of events from the di!'lease would be damages for which the railroad company would be responsible; but anything which came by any increase in the disease, aggrayated by the expulsion, or brought about by the expulsion. And so any permanent or continued injury to his system which has flowed from that act in any way is to be taken into account. Of course, as to the mere claim for money spent, and the value of his time, that is a matter of mathematical calculation, and of easy computation; but the other matter is a matter left to the solemn judgment of 12 men laken from the body of the country to say what is fair compensation. If you find for the plaintiff, the form of your verdict will be: \"We, the jury, find for the plaintiff, and assess his damages at $ ," naming the sum you fix upon; provided you find against both defendIf you find against one of the defendants, the form of your verdict ," namwill be: "We, the jury, find for the plaintiff as against .. ing it, such defendant, "and assess his damages at $ - - - " If you find. for the defendants your verdict will be:·' "We, the jury, find for the ql'fendants." In either case you will sign same with the name of one of your number as foreman.
(Circuit Court, E. D. Wisconsin. February 25, 1889.)
. Rev. S;t. U. S. § 968, pro.viding that a plaintiff recovering less than $500 in .a case which cannot be brought in a federal court unless the matter in dispute, '. exCll1siveof costs, exceed that sum, shall not be allowed costs, was taken from thejudiciafy act of September 24,1789, which placed the minimum jurisdic· tio.nal amount, at $500. It was not changed when the minimum amount was changed by act March 8, 1887. Held, that the courts cannot construe it, as ehangell, to conform to the new amount.
. ,Witnesses .may become entitled to .fees as having attended a federal court "pursuant to law," though they have done so voluntarily, without being sub· preIlaed. ' .
. ATTENDANOE· TO COSTS IN FEDERAL COURTS.
\. :.. Rev. St. U. S.
848, allows a witness mileage to and from his residence. that a may run into anotber district as to wit· nllsses living riot more than 100 miles from the. place of trial. Section 868 a.u· .; thorizes dep6sitions by witnesses living more than that distance. Held. that witnesses,voluntarily attending a court more than 100 miles distant from their ·. , can recover mileage for 100 miles. .
,AtLaw.. , On motion to tax costs. , 1):Ej$p8ssby Charles E. Eastman and Peter McArthur against Harry Sher,.ry. Vel'<J.ict lor plaintiff. . for
EASTMAN t1. SHERRY.
Mr. Hoope:r, for defendant.
JENKINS, J. Subsequent to the judiciary act of March 3, 1887, (24 St. at Large, 552,) the plaintiffs brought suit in trespass, claiming damages in $5,000. At the trial they recovered over $500, and less than the sum limited by the statute. ' 1. It is now objected for the defendant that the plaintiffs are not entitled to costs. By Rev. St. § 968, it is provided that a plaintiff recovering less than $500 in a case which cannot be brought in a federal court unless the matter in dispute, exclusive of costs, exceed that sum, shall not be allowed, but, at the discretion of the court, may be adjudged to pay, costs. This provision is first found in the judiciary act of the 24th of September, 1789, by which act the minimum jurisdictional amount is placed at $500, exclusive of costs. It cannot be denied that the then design of the legislative authority was to deny costs in every case where the recovery did not equal the amount necessary to confer jurisdiction, although the damages laid might show jurisdiction by the record. Upon change of the minimum amount essential to jurisdiction, this restriction as to costs, either by design or misprision, remained unaltered. It was not changed to conform to the. cha nged conditions of jurisdiction. It is urged that by analogy he who recovers less than the present jurisdictional limit should not recover costs, notwithstanding the provisions of section l!l68remainunchanged. It must be borne in mind that at common laW' costs.were unknown. They are the creature of statute. It rests with legislative authority to grant or deny them, and to determine in what cases, and under what circumstances, they should be allowed. It may appropriate that this law should be ·altered to conform to changed conditions. That, however, is matter for the legislative, not the judicial, authority. Courts can only administer the law as it is found. The plaintiff must be held to be entitled to costs. 2. Certain witnesses, resident without the district, and not within 100 miles of the place of: trial, attended at the trial voluntarily, and not under subprena. It is objected that fees and mileage may not be allowed for such witnesses, or, if taxable, that mileage should be restricted to 100 miles. Upon both orthese questions there exisfs much conflict i£,1 the various circuits. The cases are assembled in U. S. v. Sanborn, 28 Fed. Rep. 299; Spaulding v. Tucker, 2 Sawy. 50; Haine8 v. McLa'ughlin,29 Eed; Rep. The Vernon, 36 Fed. Rep. 113,-where the argument on both sides is well presented. It needs only to state the conclusions to ;Which my mind is constrained upon a careful consideration of the questions. The conclusion ttat a witness attends "pursuant to law" only when present in obedience to a subpoona is, to my thinking, quite too narrow a construction of the statute. The object of the law is to.reimburse the prevailing party for the necessary expenses of his evidence, The only purpose of the writ is to. compel attendance. But, voluntarily the witness is clothed with all trreimmunities ofawithess :\Y.ith process. He ljubjectshimselftothejurisdiction and, when sworn, is subject to like penalties and protection llS·
tending in obedience to a writ. He attends pursuant to.1awwhenhe subjects himself to the law. He waives the formal service of the writ. tnatter personal to himself and to the party who calls him. Astd the remaining question, I am of opiuionthat in case of a witness resident without the district the mileage must be restricted to not exceeding 100 miles. The various statutory provisions governing the subject are in pari materia, and to be construed toget4er. By section 848 nlileage is allowed for going from ,. and returning to the place of residence ofthe witness, By section 876 the writ of subpama may run into another distriqt as to witnesses living at a distance not exceeding 100 miles from the, place of trial. Section 863 authorizes the deposition of witnesses resident more than 100 miles from the place of trial. It seems clear to me that intended to allow mileage only to the extent that a sub,. pama would rUn. The statute should be read ,as though the words "within the jurisdiction of a writ of subprena "were added to section 848. A different construction would open the door to great abuses. A defeated party might be charged with the mileage of witnesses from across the sea, or from distant points in the United States, rendering litigation oppressive, if 110t ruinous. As the testimony of witnesses resident more than 100 miles from the place of trial may be taken by deposition, I think it was designed to limit the mileage to the running of the writ of subpcena. Itmay be that oral evidence delivered in court is more potential than that taken ,by deposition. That consideration, however, should notavail to a constr\l.C\tion of the statute that would work oppression. The law has provided ,an inexpensive mode of obtaining the testimony of nonresident witnesses. If personal attendance at the trial is deemed essential, the expense,except as to 100 miles, should be borne by the party inducing such, attendance.
THE CITY OF SALEM.
(Dtatriot Oourt, D. Orego1/,; February 12, 1889.)
NAVJGABLB WATER8'-INTERSTATE REGULATIONS.
The power to regulate commerce among the several states comprehends the power to reg,ulll,te the navigable watllrs of the United, States on which such commerce may be or is carried. and to 'this end congress mll-Y make any regulation concerning such navigation, including the vessels engaged therein. as ,may be necessary and proper to secure and maintain the safety and convenieuce of the water-way; which regulations are so far applicable to vessels en. gaged only iil'intrastate commerce thereon as to those engaged in interstate ' commerce; , " , :The, con,tli\ined in section 4465 Qfthe Revised Statutes, forbidding " steam-boat to, ca,rry more than allowed in her certificate of inspection, held to apply to such boats, engaged in carrying passengers on a navigable water of the United States between ports of the same state only.
(SVlla1nl.8 b'll tM OotU't.)