This was an action by the plaintiff against the town, for damages to himself and team from a defeсt in a highway which the town was under obligation to keep in reasonable repair. There were two trials. On the first the jury disagreed; at the second there was a verdict and judgment for the defendant. At each of -these trials the jury, upon motion of the defendant, was sent out by the court, undеr the direction of the marshal, to view the highway where the accident happened, аnd where the damage was sus-r tained by the plaintiff.
The statute of New Hampshire provides' (chapter 231, §§ 17, 18, p. 537, Gen. Laws) that— ,
“In trials of actions involving questions of right to real estate, or in which the еxamination of places or objects may aid the jury in understanding the testimony, the court, on mоtion of either party, may, in their discretion, direct a view of the premises by the jury, under such rules as they may prescribe.” “ The cost of such view shall be subject to adjudication as to the whоle or any part thereof, as the court may deem equitable.”
The statute of the United States provides, (section 914, p. 174, Eev. St., 2d Ed. 1878:)
“ The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit or district courts, shall conform as near as may be to the practice, pleadings, and forms and modes*733 of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding.”
The dеfendant claimed to recover, as costs from the plaintiff, the expenses paid out by the town in conveying the jury, in each of the trials, to the place of view, and in returning them to the court ; and also a further sum for the board and lodging of the jurors upon the last view, which detainеd them “over night.” It is conceded that there is no statute of the United States that provides for the allowance of such an expenditure as costs; and in Parker v. Bigler, 1 Fisher, 285, it was held that no costs cоuld be recovered by the prevailing party but the legal taxed costs. The same decisiоn was substantially made in Day v. Woodworth,
In the case of Stockbridge Iron Co. v. Cone Iron Works,
I am inclined in this case to allow as costs to be recovered by the defendant of the plaintiff thе expense paid by the defendant as carriage hire and car fare to take the jury to the place of view and back to the court—$15 at the first trial and $46.40 on the second, thе distance being much greater,—and to disallow the sum of $19.50 for the board and lodging of the jury over night on the second view, as this expenditure should have been borne by the jurors out of their per diеm allowance while making the view; and this I do on the more distinct ground that the law of the United Statеs (section 914, Rev.
The defendant claims to recover a docket fee of $20 at the former trial, when the jury disagreed, and a like fee at the second trial, when judgment was for the defendant; but only one docket fee can be allowed. Witness fees, travel and attendance, and other items allowed as taxed.