28 F. 299 | U.S. Circuit Court for the District of Massachusetts | 1886
The report of the clerk presents for our determination two questions of costs: the one, of the amount taxable, under section 848 of the Revised Statutes, for the travel of an ordinary witness, who, without having been summoned, has traveled from and to the place of his residence, more than 100 miles off, and in another state and district; the other, of the amount taxable, under section 850, for travel or expenses of government clerks.
Upon the first question the principal authority is Prouty v. Draper, 2 Story, 199, decided by this court in 1842, which was an action at law for the infringement of a patent, and in which, as the report clearly implies, and the papers on file conclusively show, the witnesses in question, whose travel from their places of residence to the court and back was taxed in the bill of costs, resided in another district, and more that 100 miles from the place of trial, and attended without having been summoned. Mr. Justice Story, in delivering judgment, after referring to the judiciary act of September 24, 1789, c. 20, § 30, which allowed the testimony of witnesses living more than 100 miles from the place of trial to be taken by deposition, said:
“The act is not peremptory that, under such circumstances, the depositions of the witnesses shall be taken and used, but only that they may be taken and used. It is therefore a mere option given to the party who wishes to use the testimony of the witnesses. In many cases the presence of the witnesses in person, and their oral testimony on the stand, may be indispensable to the true exposition of the merits of the case. ISfo deposition would or could meet all the exigencies which might arise from the varying character of the evidence, or the necessity of instant explanation of circumstances not previously known or understood. The character of the case, too, may be so dependent upon scientific principles, or on a minute description of mechanism, as to be almost impracticable to be presented to a jury except by the aid of oral testimony illustrating the principles of mechanism. In no •class of eases is this more forcibly felt than in the trial of cases like the*301 present, for infringement of patent-rights. There -is no pretense in the present case that the witnesses were brought here for the purposes of oppression. or without necessity, for the purpose of swelling the costs of the litigation. In my judgment, therefore, there is no ground to say that the full costs of the personal travel and attendance of the witnesses ought not to be allowed in the costs. Unless my memory deceives me, the same question has been presented to this court in several instances before the present, and it lias uniformly received the same determination. There are numerous cases in the 'English reports in which allowances have been made for the travel and attendance of witnesses who have come from foreign countries for the purposes of the trial; and yet we all know that in such cases, through the instrumentality of a court of equity, (and now in many cases of a court of law,) the testimony of such witnesses might be obtained upon a commission. Indeed, since the statute of 1 Win. IV. a. 22, giving authority to the courts of law to issue commissions to take the examinations of witnesses abroad, it is still a meie matter of discretion with the court, if the witnesses are actually brought from abroad, whether they will allow the expenses of the witnesses or only the costs of a commission. This seems to be putting the whole doctrine upon a sound and rational foundation, and enables the courts at once to accomplish the purposes of justice, and to prevent the accumulation of unnecessary or extravagant expenses.”
As early as 1804 the circuit court for the .District of Columbia held that the fees of a witness who attended at the. request of the attorney for the United States, without having been summoned, were taxable costs. U. S. v. Williams, 1 Cranch, 178. And, in one of the English cases cited by Mr. Justice Stoey, the fact that the witness resided beyond the reach of a subpuona, and therefore could not have been compelled to come, was considered by Lord Chief Justice Tindal a reason for allowing his traveling expenses in the bill of costs. Lonergan v. Royal Exch. Assur., 7 Bing. 725; S. C. 5 Moore & P. 447, 805, 811; 1 Dowl. 223, 233, 235.
The rule affirmed in Prouty v. Draper was again applied by Mr. Justice Story, in 1844, in Whipple v. Cumberland Co., 3 Story, 84, and was recognized and approved by Mr. Justice Woodbury, in 1846, in Hathaway v. Roach, 2 Woodb. & M. 63, 73, and has ever since been acted on in this district. The decisions of Justices Stoey and Woodbuey were made under the act of February 28, 1799, c. 19, § 6, in which the provision was in this form:
“The compensation to jurors and witnesses in the courts of the United States shall be as follows, to-wit: To each grand and oilier juror, for each day he shall attend in court, one dollar and twenty-five cents, and for traveling, at the rate of five cents per mile, from their respective places of abode to the place where the court is holden, and the like allowance for returning; to the witnesses summoned in any court of the United States the same allowance as is above provided for jurors.” 1 St. 626.
They evidently considered that the general description, at the beginning of the section, of the persons to be compensated as “witnesses in the courts of the United States,” was not narrowed by the use of the words “witnesses summoned,” towards the end of the section, but included witnesses not summoned, and even those residing
The same view applies with increased force to the language of the act of February 26, 1853, c. 80, § 3, (10 St. 167,) repeated in section 848 of the Revised Statutes, by which witness fees are declared to be, “for each day’s attendance in court, or before any officer pursuant to law,” $1.50, and five cents a mile for going “from his place of residence to the place of trial or hearing,” and five cents a mile for returning; and neither the word “summoned,” nor any equivalent word, is used, except in a clause added to prevent the multiplication of fees “when a witness is subpcenaed in more than one cause between the same parties at the same court.” In the phrase “for each day’s attendance in court, or before any officer pursuant to law,” the words “pursuant to law” would seem to have been inserted, not to restrict or qualify the effect of “attendance in court,” but rather to limit the attendance “before any officer” to attendance before such magistrates, commissioners, and other officers as are authorized by law to take testimony. But, assuming them to apply to both classes of cases, it is only “attendance pursuant to law, not “being summoned pursuant to law,” that is required to entitle a witness to his fees. A witness who, in good faith, comes to court to testify in a pending suit, whether he comes in obedience to a subpoena, or at the mere request of one of the parties, attends pursuant to law, and while coming, attending, and returning is privileged from arrest on civil process, even if he comes from abroad, and has no writ of protection. Walpole v. Alexander, 3 Doug. 45; May v. Shumway, 16 Gray, 86; Person v. Grier, 66 N. Y. 124; Parker v. Hotchkiss, 1 Wall. Jr. 269, 274; Larned v. Griffin, 12 Fed. Rep. 590.
The only object of a subpoena is to compel the witness to attend. The service of a subpoena is in the interest of the party who desires the attendance, and not in that of the other party. A witness who has not been served with a subpoena cannot, indeed, be attached for not attending; but if he is willing to attend, and does attend, without a subpoena, the service of a subpoena would be superfluous, and would only increase the costs, without any benefit to either party. The examination of the witness in the presence of the tribunal that is to pass upon his testimony is often quite as important to the party against whom he is called as to the party calling him; and the statutes of the United States from the beginning have declared that the mode of proof in the trial of actions at common law shall be by oral testimony, and examination of witnesses in open court, except as otherwise especially provided. Act of September 24, 1789, c. 20, § 30, (1 St. 88; Rev. St. § 861.)
If the witness comes before the court under circumstances, and for a purpose; which warrant the payment and taxation of his fees for attendance and travel, section 848 of the Revised Statutes, like the act of 1853, directs that the travel shall be computed from “his place
The rulings in other circuits, after giving them the consideration due to decisions of courts of co-ordinate jurisdiction, do not present to our minds any sufficient reason for overruling the decisions of our predecessors, disturbing the practice long established here, and departing from what appears to us to be the fair meaning of the statutes. The leading cases in other circuits are Dreskill v. Parish, 5 McLean, 213, 241, in 1851, and Anon., 5 Blatchf. 134, in 1863, each of which would appear from the report to have been decided summarily, and without being aware of the previous decisions in England and in this circuit. In Dreskill v. Parish, Mr. Justice McLean ruled that the fees of a witness who attended voluntarily, without having been summoned, could not be taxed. But the only reasons assigned by the learned justice were that the attendance of such a witness could not have been compelled by attachment, and that the act of 1799 (under which the case arose) had provided only for the compensation of witnesses summoned, and “a witness not summoned, of course, can receive no compensation.” Under the act of 1853 there have been conflicting decisions of district judges in the same circuit; Judge Leavitt, in 1862, holding that the fees for travel of such a witness could not he taxed, and Judge Withey, in 1869, holding that they could. Woodruff v. Barney, 2 Fisher, Pat. Cas. 244; S. C. 1 Bond, 528; Anderson v. Moe, 1 Abb. (U. S.) 299. The dis-allowance of such foes by Judges Drummond and Blodgett, in 1870, in Sawyer v. Aultman & Taylor Co., 5 Biss. 165, was governed by a
The whole report of the anonymous case in 5 Blatchf. 134, is only this brief memorandum:
“In this ease, which was a question as to the taxation of costs, Shxpmast, J., with the concurrence of Mr. Justice Nelsor, held that traveling fees to a witness were allowable only to the extent a subpoena would run; that is, for any distance within the district, but for not exceeding one hundred miles from the place of trial, unless the distance was wholly within the district. ”
That ruling appears to have been followed without further discussion, as having fixed the practice in the Second circuit, so far as not to permit the taxation of fees for travel beyond the limits within' which the witness could have been summoned. Beckwith v. Easton, (1870,) 4 Ben. 357; The Leo, (1872,) 5 Ben. 486. But we are unable to reconcile it in principle with the uniform course of decision in that circuit, that the fact that a witness had not been summoned did not prevent the taxation of his fees for travel and attendance, under the-act of 1853. Cummings v. Akron Co., (1869,) 6 Blatchf. 509; Dennis v. Eddy, (1874,) 12 Blatchf. 195. There seems to ns to be quite as. much reason for taxing the travel of a witness from the place of his-residence to the place of trial in the case in which he could not have been summoned as in the case in which he might have been and was. not. The cases in the courts of the several states depend too much upon local statute or usage to be of much assistance in the interpretation of the acts of congress.
There being no evidence or suggestion that the personal attendance of the witness who resided at Troy, in the state of New York, was unnecessary or unreasonable, his travel should be taxed for the whole distance between his residence and the place of trial.
The other question presented by the report is quite distinct, and is governed by section 850 of the Revised Statutes, which is as follows:
“When any clerk or other officer of- the United States is sent away from his place of business as a witness for the government, his necessary expenses, stated in items and sworn to, in going, returning, and attendance on the court, shall be audited and paid; but no mileage or other compensation in addition to his salary shall in any case be allowed.”
The meaning of this provision, which is a substantial re-enactment of the similar one in the act of February 26, 1853, c. 80, § 3, (10 St. 167, 168,) appears to us too clear to admit of doubt. Private persons are allowed witness fees because of the interruption of their own business. But a clerk or other officer of the United States re-
It follows that nothing can he taxed in the hill of costs for the travel or attendance of the government clerks. Taxation modified.