MINIS
v.
NELSON.
777
If there had been no agreement or nnderstanding that the goods should be held until the defendant's demand was complied with, the defendant would have been bound to forward them at once, or without nnreason· able delay; but, having agreed to hold the goods until the charges were paid, it was a breach of the contract to forward them without notice to the plaintiff. She believed, as she well might, that her goods would not be forwarded until she complied with the defendant's demand, and that she could and would reach Seattle in time to care for them on their ar· rival. She was prevented from doing this by the neglect of the defendant to discharge a plain duty that it owed her. Her goods were destroyed 2,000 miles away, when, owing to the misleading conduct of the defendant, she Ilupposed they were still at Chicago. If a carrier receives goods for transportation, agreeing to hold them until a future date, or until the happening of an event, and forwards them at once, damages resulting from a breach of the agreement may be recovered. !twas clearly the defendant's duty to hold the goods, or notify the plaintifIthat it was willing to forward them, waiving prepayment of the , carrying charges. Finding and judgment for the plaintiff tor $1,650·
.MINIS
et ,oZ. v.
NELSON
et oZ.
(CVcuU Oourt, B. D. Georgia. April Term, 1890.)
L ll.
O1:l'sTOJI-RlilASONABLENESS-PRINCIPAL AND AGENT-8HIPPING.
A custom that an agency, to act for a ship in distress is irrevocable Is Invalid, as being unreasonable, A custom that the agent of a ship in distress shall receive In all cases a custody commissibn per cent. upon the value of the cargo discharged, and an attendance fee in the dfscretion of the agent, is void as to the attendance fee for want of uniformity, but valid as to the commission. Where a defendant has acted in bad faith, and has been'stnbbornly litigious, the jury may allow plaintiff an attorney's fee as an element of damage. " .
SAME-CoMPENSATION OP AGENT.
S. VERDICT-ATTORNEYS' FEES.
At Law. This was an action by A. Minis & Sons to recover for services as ship agents. The jury found for plaintiff in the snm of $4,316.78. Chisholm Erwin and Wm. Bignon, for plaintiffs. George A.Mercer, for defendants. SPEER,J., (oraUy chargingtlte jury.) This suit is broup;ht by A. Minitl &: Sons, fOI"$5,573.45, besides interest from thtl 16th clay of December, 1887.' This sum is made up of several charges, to which the court 'will preseritly' refer )'ou. The plaintiffs' are commission and shipping mel\chants Rnd;brokers in Savannah. The defendants are owners o( the British The plaintiffI!' were the agents or oJnsignees
FEDERAl;
vol. 43.
of· the Na.ples fortbe and pi vOyll,geto this pol't'j : They ,were chllrg.ed with,the usual duties, inqqmbentupon shipagQnt8:in referencetQ fl,t the port Qi\Sa\1l'\nnah with iii ..f9r. fpJ;eign port. thlj.t agency tb,ey were; paid .a ;no a matter ofcontroversy ,of ,6q'clock iI;l the evening of here., ;,Pending the the' 6th day Qf.October, 1887, a:(ire b.ro,ke out in the ql!.rgo.From that moment ;the Naples 'WllS,lI. in and theplai,ntiffs. insist that they iW6l161employe.d itO ll,ct as the j\gents fpr the Naples with reference to Jaer conditionj w'l}Sa newcoptra,ct, entirely djstinct 11n.d:diffell'entJrom o,11dinary of agencywhi,q4theyhadbl;len performing; .and tlJtJ.t such agents ,for the ship in, ,q.istress they are en.titl1edJ_under,tlle factfl :of the QR1i% sums for wp.icl1 :they ,?ring this alli.t :under. the :declamtiot;l I?ElUiJ,lg' o,ut .these defendants file the plea. of UndetJhi!tplea thej"A,lfny; :tlwt;the plll.intiffs ,w-ere th,eir &«e,nts in tbe:sllns6 cOD;uI!-isi!ion fo.. Qf: 1/.' o.rin : f9l' of 1:1.' ca,rgo of a ship iIi distress. They insist that if Minis & Sops.!?egan, unqer any kind of re-voked. They say that there is no provision of law of custom for the charges of the plaintiffs, which they insist are exorbitant. 'l'his denial extends to all the charges in the.. d-eelaration, to all the demands of the plaintiffs,-the demand for custody commission, for attendance fees, and attorney's fees. The defendants admit that for any actual services A. Minis & Sons may rendered they may be to recover a small amount, Which, for the defendants, in his argument, said should not e:tceed ''$750; .' They 'a1'e\ il'Ot entitled, It'fj(:j\dMendants insist, or anytpi!1g like it..?-,q.e}.te1nf!.of the: pln,il\to recover the sUIll for the vessel tiffs',demanlf·llir6 as· follows:.. To attendance in distress at and after the fire, October 6, tocommisslons ,for, the ool'&.andcustodyofcargo of thestElam-,ahI\Iil Naples, 2i per cent. the ;wh.ich aggregate, $5,0136.78. They then InSISt areent1tlEld, ,to r\lcoveryattorneys' fees fqrthe unwarrantable Rnd spYit which they Bay the which fees they prove to be, in case they are recoverable, $506.67, or 10 per cent. upon the amount which they insist they should recover. They further, ,tMy:are, not, ,t4e8e precilles\up.s they are enwhat tbe proof show:sthqir titled to meruit, or as much as meritll<l. . .', ::, :" .,'.' The prominent feature in the ..ofthe averment that there is in the port of Savannah a usage or custom which is of sufficCl!lri9f justi.l;6to Their .detinition <tf, thp.t C\lStOlni ds as, IJpd .olfer prpof to itb"a-t,lf the pro(fer!lh),sS\erv:jqes tQithe Qf, ..son,i,n. pf distress" Qfl tb13 ,cqntrw. p.g;rej3s to either onlYI 1
*
;78
·
MINIS"·. NELSON.
continuous until the matter is ended,andis not revocable;) [j·rrltey. !£ut..' ther define the cnstom to authorize a' charge for attendance iD,pIioportion to the services rendered, which charge is wstified to be' discretionary with the ship-agent; that the custom authorizes these chattges,-the attendance fee, which is discretionary; the custody commission for the cusper cent. upon its value, and 2! per cent. tody of the cargo, which is upon all disbursements for the ship. It >is well, however, to consider.a:t this point that there are no charges for disbursements here, and; therefore we are not to consider disbursements in this case. These' are the, features the plaintiffs insist appertain to the custom. Now,what iSIl custom? A custom is an unwritten law, established by long uS/lge:and the consent of our ancestors. Usage is the legal evidence of the custom, !tmay be further defined. to be: uilage which has obtained the force of law; and is,in truth, the binding law within a particular district or at Il particular place as to the persons and things which it Mncerns; ,Now, it is for you, under the rules oflawwhich I shall gi'i'e you, to determine whether there has' been shown in this case such usage,---that'is, the use and practice of· the trade, the shipping merchants'trade,which usage bas obtained the force of law,and is binding law within a particular district or ata particular place, to-wit, the port of Savannah, as to the persons and things which it concernSj that is, as to the shipagents and the owners of ships which ply to and from: this port. Now , before a custom or usage cam be of the binding foroe of law,: it 'roUt'lt be shown to:extist by proof,and this proof :must be made by the person seeking an advantage.,under the custom or usage in this case. Of course, you understand that the' :plaintiffs are ,seeking an advantage under. the alleged custotnhere, and :therefore they mustshct'ALby proof the 'existence of the custom. Now, what else must the proof show? 'First, it must the custom il$ oertain. If the proof leaves t\1e c\1stom uncertain4 eitheras to the fl;wt or as to its effect on the matter, with which iLis related, it is void as adustomj it isanuHity;and can betaken' under it. Bet"ltt1se the' court adviseS you,' :that the custom,' must be shown by the proof to be certain" you'hnldt not, understand that it rrhlstbe used by and at it must be'certainly shown,h,owever, to be the of the trade at this port. Again, the custom must not only: ,be certain;. bunt .Illust be reasonable in it!:'elfj and whether'reas()llable or notiis 11ot; a question for the jury, but that is for the court to decide, and instfuct the jury..,The custom have existed from time imnlem<:>dal." .. ,If anyone Can showits beginning it is nC? good custom.,.. qustom. must he ,continued, ",jthoUt30Y interruvtion, for an interruption will cause a temporary cessation oftbe custom, and the beginningwoulu ' be remelnbeted, alid therefore it would not be from time immemorial. Any interroption of therignt is tneant,Rnd not its actual practice .. If Were was adisth1ctanQ general abanaou'rbertt 'o(We" right, facts of b.y. the cease 19 Now, what ,lsth¢matn obJeQt and, use of a QUSfQlll,of this.; is" gentlemen., to· interpret aud ma.ke plain the intentioD&'
ISO
FEDERAL REPORTER,
of may otherwise be uridetermined,--tbat is, uncertain; and to, ascertain the nature and!extent of theirconiracts,-contracts arising not from express stipulations l that is, express contracts, but from acts of a doubtful character, or from implicationsl1nd presumptions. The use of a custom, I may illustrate to you by the facts of this case: If, when Mr. Minis went aboard the steam-ship, there was a distinct express contract between him and the master to pay a,certain sum, that ;would end the matter; but if he went to report to the master, and the master accepted his services and took his advice, and he went forward and rendered the services of a ship"agent toa ship in distress, and there was no precise, definite,express contract between him and the master, then the nature oUbe contract between the agents and the ship-owners must be determined by the custom, if there be such custom. To enable you to ascertain what really was their contract, under the circumstances, you mu.st consider the custom of the trade at this port. If the customiB otherwise shown to be ,definite, certain, unit"orm, reasonable, iplmemorial, and to possess the other requisites to which I have called your attention, the entelling into the c<>ntract would be a part of it, and the .Jury would be justified in holding that the parties acted in view of tpecll.atom,·, whether they both had the custom in mind at the time ., . or·not. ,Now, do facts show such a custom? Upon this subject you must; rememberthe·testimony oheveral gentlemel'l who testified here as wit-, nasses. You. remember what it was. The ,testimony which the court, has.in hand was offered by the defendant, and it is the testimony. ()f a witness who seems to be.an expert upon this general subject; and the court, as is tb.e,practice in ourconrt, will read you what he testi-· fies.' Thisis Mr. Gourlie, who testified as follows: t" ' ""1 am It member of the:firm of JohnsoD & Higgins, averageadJllsters and insurance brokers. That firm has been engaged in such business, I believe. s9me forty years; and ,I, have pUNluedthe business of average adjusting some t.went-t yei;l,t',s. ,I have a familiarity with the manner in ",1}iph general. average are made ,up. and the allowed. in. them; and if a tOdy commission is one ofthe chal'gesin the accounts. submitted to us asadjustel's i,t is the custom in thispol't to allow such custody commission in' general average. ',AccordiDgto the usage of this port the percentage of such custody,commission varies. running from two and one-half per cent. upon ttJe; vallie of the cargo discharged, which is the rate fixed by the regulations ofthe chamber of commerce;as olle of the charges of ,thililport, down in some cases to one per cent. iJpon tlie value. cargo The, : cODunission depends upon whether a cargo has been fr9m the ves- . sel"in distress;· If no discharge has occurred,thereis no custody commission' cbargeable; consequently iIi the adjustment of sllch caSes wedo not have' to deal witjl suchan item. .A. custody commission. or. charge for the care of cargo disoha,rged in distress, is. 1 believe. ctiatomary in this port. We have ' averages in our Wherein anallo'Yal1cl:lllfcustosIy:com-'. mIssion to the consignee ofa vessel in Savannah. I recall several. suc.b QIlSes. itt '.eacH ;ofwhich the. custody commis!iion was two per cent." the value of the cargo discharged itl (listress.' leaD least five· cases Within:th'e past· tiveyears whete a' custody cooimlssion of two and ; OIll'e7'Ql\!f pet centihas, been allowed to the consignees in tb.e port Savannah.'
of
lrIll'rs
V. 1'ELSON.
781'
A custody commission pre\Oatls In all the ports of the' United States, 10 fat 88 1 know. The peroentage of commission varies. Two and one-half per cebt. is the prevalent rate in Philadelphia, and tbis rate prevails, to tbebest of my knowledge, in more of the of the United States than does any other rate of commission. It is a more general commission than ie any other rate of percentage. In Charleston, also, the usual commission for cnstody is two per cent. l' can also recall cases at Norfolk, Va.. Halifax, N. S., and Nassau, N. P., St. Thomas, W.L, and!JFayal, in each of which a custody charged." commission of two and one-half per cent. This gentleman was a witness for the defendants, and as it is not contradicted the defendants are bound by his evidence. The court reads it, as it shortens the'matter. The court states to you that if you believe the testimony of that ,gentleman, Mr. Goudie,you may well conclude that there is a custody commission of 21 per cent. on the value of the cargo of vessels in distress, when the cargo has been dIscharged, which custom exists at the port of Savannah. While there is some little variation. in particular cases in reference to the charge of 21 per cent. as custody commission, there doeS not seem to be a;ny difference of opinion among the witnesses at all about the existence of the pqstom. The- court charges you further that· if. the custoD;llS of that character that it would prevent a ship-owner from revoking the agency, then, it is an unreasonable custom, in that respect, and in violation, of the several principles of the law of The power of an agent may be .revoked at any timl;l by the principal, without the agent in the prosecution'of business.of his pripcipal ha,s fairIy an,d. in good faith, before notice of the revocation of his power, entered into' any engagements. or has incurred any liabilities, the principal will be hound to indemnify him. Now, you understand that announcement of the court. , If it be true, as testified by the witnesses here, that the custom prevents a ship-owner from revoking the agency of his agent" that custom in that respect is unreasonable, and has no legal force. It true. however, that where the agency is revoked it would not deprive the' agent of a fair compensation for the services which he had fore it was revoked. If you find from the evidence in this case that the agency was revoked, the plaintiffs would not be entitled to recover· the full amount of their demand, but they would be entitled to recover a fait compensation for the services they had rendered; and, if they suffered loss because of any engagements which they had entered, or upon any liabilities they had assumed, the principal would be bound to indeumlfy, them for the losses. The important question here is to tbeagency was in fact entered upon, and,.if entered u'pon, was it revolq;ld? gad Minis & Sons entered fairly upon the agency of the Naples in distress? That you will determine from all the 'evidence·. YouwiU remember the testimony of Mr. Minis upon that subject. It is lleqessary that the court should go over; that matter again with you. timonYQf the defendants' witness, Capt. Rulffs, is as follows: "When I stood amid-ships, the captain of the Resolute asked me if I JlI.8de any agreement with the tug-boat. Same time Mr. Minis came up. The-ned tug-bOat came tlien, and I asked Mr. Minis what we were going to paittiemi
is
782,
FEDERALRE:PORl'E¥ ",YPl.
43.
,tug-bqatJ"b,!,lt it ,woujil not QIl<J!,agr#!\'l.IJlWlb: try, and .get it Jor$20 per :M,r, l\ilini.!!lt<?1!l,:tne to, ()ut, holes dec;:k ,pn ",ere,,fine l!oles 'nirecut in.. the tnOI;ning tpput ,dllck. fire between. the rpaln ll;tldf!>re ,'., At/the time oftbe1ire, I k,new ship was consigned to Sons. \yas agePII<.Jf thl! shipat,tJlat tl ll1 e. lcopsulted him as adviser, 'wus .l,di4lJot take Itgenc;:y away until Saturday morning. on It cable from my owners. The stevedores Friday abOutU A.1d; The ,stevedores were Reilly & M:armal$tein. On'Friday Putnam could not see that steveworking right. Tbe dil'lpharging was etc. further, as I remember"a survey was called by Mr. Minis at his request.] ,'jWllen I got first cable-from my owners, protesting against Cbubbs' sanc:,' " '[Ohllbbs; as 'yoU' will remember, repreSented the indemnity club, whiehlclubisresponsible, in atleast, for the losses of the ship.] protestin" ChubbS"sanctii'l1 of 'Minis &' Sons' unjust 'chargE'. ,I told thatha wall 'nO Iungerfuy ageilt, andthlltis what I mean't when I lfaid<[It'evoked the agency in thedirecti examinatioll., It ,was on l:)aturday, Octubet;;8th. that I and IDll wby I ,called a letting and then I told hiD1-,b,e Wi¥' tnY agent,Md would keep the!!hip in my own hanus. On 1nda'y;Octobel' 7th, w'ent to Minis' OtIiCfl witb,Put'nam,atid he wanted to gl've to .,'" '. . '.' lll1aterlaL testimony of the cap,tl!.inppon the e,t ,Sons, entered pon a contract. Mr.; 4e did. JIe testifi.ed, further, that tpe; only matter in ami or the ownlfrs was the amount of ipsisted.thathewas to, have the the that, 'by wilY o(com promise r agreed MI, $3,Oqp.That proposition was I).otcart;4ejury in this ellse. He denies the 'Was ever discharged from theagellcy, that. captainthre/ltene4. tod,ischarge him not come to from the captain,to Minis &.800s ofthe evidencebefore:you: : Y\>01' S. Naples. l, c.onsider to andby you )VillhaV'eto cotneconsidel-ahle'doWIi in the Ilgures if Vou intend. to have the ,At will ' Slle.!,O!l11h .Monda!; if not; favor rna' ,,,,(th"a! reply. Ft>rhHtJ8'btnerUi'llstructlOnswlll turoup. Unhl then, I , temailll 'gentlemen, yours, reepectfl.illy, ''CLEMENS RUJi.VFS, Mastel'." thelOthOcWHer'1887 he .writes: , . ' . : ' . . MMis'& <:lonllrmingrnylE'tterof the 8th inst;: I bE'g to expI'eAgi surprise a£tia\iingj no reply to it/whiCh eomrnoncollrtesy .1, have. t9 epnsult I (eeH\1liltiU1!d is;c,olning ,When 1. shall need s\lwe une.,. Unless 1 e,.rly; ,replltbat,WQ.l1ld l\nd. aCCeptable.,! shall feal
s.
MINIS V. NELSON.
compelled to IQoki4lllsewhere iIitheevenkQfmy requiring 3n: agent tp confli' ,to act .formy ,ship.·: ·. ; , ' , , . ' ," To; this Messrs. ,Minisk Sons' ,date"is'at hand. ,We; did not understand"thatyQu.r cQrlH:n,unication':oftlle 8th iust.called .f,or /lnyreply. i93S,1D\lch only in the us to-da)\ .. Bes,ides no We Jo l\Ilqad V:ice are open :you, and we'are' now ,as we' alway.s, have been, cOlltinu:e toful'tHt our duties as agents 'llft'reIidering you alJwell as,the slWpandcargo an:y servl .ices .·in 'oUrpOW'611" ;If ,you desire to' conft-r, with us; alB< ,III. eU$;tomaryfor. a mastertu'do,wUhhis a.gettte"omr thnJ3and,iuslgment are at your dis-posltl·. ' it') · j.', ' , , ; ; ,A. MINIS , . .the' QorrespondeRoeupon ,the, subject. You must take, ,that: correspondence" and alL other factsr ,in::The ,case',land de-termine'fnorn it' whether ornbHheJ'agericywAs ·revoked;)' the,cbrrElspoOOenb$'stbOd uDsupp()ited. by othere.vidence, it .would lshoVl"that the;agericy ;MessrlJo'Minis opiriion:thatthey Of the ship, They;je11 forithat'opfuiontn pon, tbatfl!l1ture oftheeust:oInwhichhas .been :tes1liftedcW by the .witnesses ,here, whicq, feature iii imrailid. ,BmUlw ,letters 'did.notlstlln-q.a:lone.', ,.They :mustbe'oop.siderel;i in eQnnedtionwithall,tbil 'other.;inets oflthe.ca8e'.:'¥ou ,rilUst:ooa'l'in mind the;testimon\lwf:iMll. . i.Jt,'r.eference' to: the: business :of the ship! lind J: inJvi6Wl of the lcolitliet ,00,tween tsheJ\Capt'l1in r:andJMr.; .tMinisp your .ul\l/i1t'detel{miri.e Whether..or. IlIOt MiniS' . is.eredible, . if;crediblel' how )far it, w:ill belp .·yoU.lm'yoor tleC:isiim ag,tdwhlilther;ofnot, ,thB',a;geneyiIW8sre:voked. , .depemds upoh the. telegram, Of the:1 fl tlL"frOoto.. her; f:OOni,theowBersAlf the v.eSJlel to the.captaiIi, the"ini.i1ter of tme:ve$sel', ,whdare the defendant8iD' The 'fire;.youwillremember;ltook ,place on the 6tn,and ulldfihiscbrrespondence and negotiations iW(l]'ejJlemd;ing arid' carried 0ninthe period between the 6th anp. the date of this ,cable l w,ljIieB faihe 11th. ;, Itis"ill evidence that the :defendants wer6':8jd vised ,of,thecondirtioD Oi\.ff.:hete by the master. They understooo, :that Minis & S6ns'werestandingout for the custody commission.; TIrey, had instructeciLthemaster to:refuse b:> agree to the ctist.ody iWith that on, the:17:th of October, they send this cable to Minis & Soris: :, J "Prhate:;: confidentiaL; Consider ship's Sava.nah, fOI.. IIOU mI· and, cotton. average adjusted Ameri<:a0 ,; . Now; it .is the d tity of cou.rt to construe :this to: e J1IlIy.1;,;I;t was, received: after,: as Ihsveisaid, the controv.ersy was fully or after-they' had ,the; opportunity of rully, the and it.s features:as it existed, here. ,They serid :this :" Private;c, corte .fidentiaJ;."·: lsi that· addressed' f g!'lntlenieri ,to; one who is not tbll'8gj:lrit: of the.ship1: ,What·righ.t: would toset¥i
'tOO,!
'<me
.aq a.gent. of the.s\l.\pl,;
784
l,lEPORTER,
vol. ,43.
'interest." Who is to consider the ship's interest? The agent, of course. Savannah." WhatV'oyage? Why, the voyage on which the Naples'was then engaged,-the voyage to Savannah for the cargo of cotton, and the voyage from Savannah to destination, where that cotton was. to be delivered. "EhdvoyageSavannah, forwarding sound and partially damagedootton to destination." That manifestly refers to the cotton portionw1;J.ich had been left intact and sound, and that portion which had. been damaged. "Claiming freight in ,general T4at means they I,Ill;lst go on and adjust thegeneralaverage,'just8s,a ship-agent would doifhis agency had never been terminated, according to the American rule fixing average. "Wire your opirtioli;" . It is impossible for the court to have any other opinion, odo give YOil further instruction, on this point, save that this cablegram ratifies, fully and .completely, Messrs. Minis & Sons as the agents for the· .ship in distress; and, if that be true, and if it further be true that a custom existed aMhis port by which they were entitled to charge .2, 'percent. custody commission, they would be entitled to make that .charge.: i '!Fhe court chailJes you furtherin reference to this custom, that the charge.forattendanoe fee is not shown to be universal; the testimony ofthe'witnesses V'aries upon that point. Sometimes it is charged, where the ·. general·custom is employed,some of the witnesses ,say, sometimes it ·is not charged. This, therefore" does not possess the feature of uniformityandtiniversalitywhich makes an uttendancefee a custom. No custom, also, can 'be good where all the discretion is on one side. In: any event,theplaintitffs are not entitled to an attendance fee in thiS ease. The court charges you .further that if you believe from the evidence,'andiin.cview: :of all lthe directions which the court bas given you Upon the subject, that no such custom existed in Savannah, in that: event ·Minis&: SODS would be entitled to recover what they meriteddin this Case; but, if you find your verdict upon the custom, you pay no Bttention the count ,in the declaration, which makes a demand,fbr a sum in proportion to the merit of the services which they have performed.' If you find undf'r the custom you should find 2i per cent.:llPon the fixed value of the cargo, which the court understands from the counsel is $4,316.78 ·. There is one further feature to which I wish to clill your llttention, and I charge you at the request of the counsel for defendant; the expenses of litigation are not generally allowed as a part of the damages, but if the defendant has acted in bad fait.h, or hasJbeenl:'ltu,bbdrllly litigious, or has caused the plaintiff unnecessary troubleanElexpense, the jury may allow the expenses of litigation. The jury are nbt obliged to allow attorney's fees; it is optional with them. the-jullycan allow attorney's fees, they must firm find that the defendant has.abted in bad faith; second, that b$ has been stubbornly l.itigious;or..· has.used the Plaintiff. uUliecessary trouble and expense. . If you find,! thei!llJll'e,.gentlemen,that the defendant has acted in bad faith, or hsshbeen'stubbornly litigiouB,orhascaused .the plaintiff unD'ooessarytrou-ble.and expense, you maY' consider attorney's,fees as an e1ementof· your." finding, and, if you do, it is agreed that 10 per cent. of
, UNITED STATES V. LEOPOLD.
785
the amount of your verdict, which you will otherwise assess, would be a defair and proper recovery for attorneys' fees. If you find that fendants have acted in good faith, and have not been stubbornly litigious, or have not caused the plaintiffs unnecessary trouble and expense, the plaintiffs cannot recover attorney's fees. If you find for the plaintiffs, your verdict will be: "We, the jury, find for the plaintiffs the sum of , with costs of suit." !fyou find for the defendants, your verdict will be: "We, the jury, find for the defendants."
UNITED STATES V. LEOPOLD it (Dimict CO'lIIrl, D. CoZorado. OJmoNAL UW-CoSTS.
ale
October 20, 18llO.,
A defendant who has been discharged by the commissioner on preliminary exam· ination, and is afterwards indicted and convicted on the same charge. .bould not be taxe(i,with the costs ot the examination before the commie.ionel'.
At Law. John D. Fleming, U. S. Atty. Robt. J. Pithin, for defendants.
HALLE'l'T, J., (oraUy.) There isa case pending in the district court in which I stated to counsel that I would express an opinion, which perhaps cannot be entered of record until the district court convenes·. The v. Leopold, in which there was a 'conviotion for using the case is mail in sending lottery circljIlars. The parties were arrested several times before a commissioner, and upon some of the charges they were discharged, and upon others they were held to appear in the district court. When the cases came before the grand jury, they found bills in the cases in which prisoners were discharged by the commissioner and in the cases in which the prisoners were held by the commissioner, and upon arraignment. they entered a plea of guilty upon all such charges. Thereupon the clerk taxed the costs accruing before tI;1e commissioner in the which they were discharged by him, and aI80 in the other matters cases. There is a motion to retax as to the costs made in cases in which they were discharged, and I believe that motion to be well founded. It seems to me that as to the costs accruing during an examination before a commissioner, if the party be discharged, he cannot afterwards be held for those costs, although on the same charge the jury may subsequently find a true bill. The costs will be retaxed, when judgment can be enin that behalf, so as to exclude thQse which were made in. the charges upon which the prisoners were acquitted on examination before the commissioner. v .4.8Jr.no.11-00
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C::,', " . ' . The second patelllti Adolphus Meier & Co" assignees of Herman Heine, for the combination, with the upper shell of a water-tube steam-generator, of a muct-drum. mounted below the normal waterline, with its feed and outlet passages at the same end of the drum, is not infringed by tbe device described in k:ltterll-p&teat·No.4l49,187, which consists of a tubular vessel, divided from end to end into two separate compartments, with its feed and outlet passages at the same end; since, in view of the prior state of the art, the former patent must,be restrioted tQ.a mud-drul!l haVing Ql,lt one chamber, as shown in its drawings ." ":." ,/, ',< ,:,.','L'!:'" iJ
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THAYER, '"f:I(HThilfia 'ttJ1g5flf 'tit seciond claim of United States letters patent No. 304,195, issued A9gqst,26, 1884, to Adolphus Meier & Co., ' (,,:r,hf:pat-
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9r the claim may be ignored as' irntnatlwial,and' liifnot impOSIng 'ahy IiinifatioQs6n the: chtim'. ,For instance,"itls sliid.-:tnavthe af:lused in" the unimpOrtant, 'anddM§hotlimWthe'pateri'tee' use of. a boilel': having a watet.legjalso"Hrat the'cohc1nding' da'l1seofthe cIaim-"sothiJJt the cuirellt'isi the fee'ddutrerit,(nnd is deiftected'backwardby thie 'upward ,cdTi'ent in the water"leg"':'<";is merely 'descriptivEnl'iattel',. and;ddes not 'tiarro", the cliiim;fri. other'words, comiplainant'lJ 'MUnsel 'construes the, claIm' 'preCisely 'as if: theirivanto( haci , ' , ' : , ' ':, ': "." '-' ,,': ",',,: " '; .", .. "I claim the combinatitm.; with the upper'shelior' (ll'um of 'any 'Bteam;'gener.ator, of 8ilnud-drum, mou1\ted'within below ttie. ,normi1;li; the; andQll tiM, paSsages ',whereof Ml6atr the same end of the mud-drum." .: ':; ,:.:" ,: .,,;,
,.leg/' ;:f P..l 1 ;':u:'" Coxnplf1inanti s counS61c6htends
Furthermore, as the claim contains no forming a part of the combination, other thaQ that it is located within