87 10 the said patents; th/l.t through them, and by means of such introduc"tiOll, defendant purchased and obtained the right to use saId patents, and in part sold the same, realizing therefor a Jarge :amount of money, (the precise amount of which is unknown,) and also ,caused to be organized a corporation for the use of said patents, with a capital stock of $250,000. The complainant demands his 5 per cent. upon these sums, and)"averring thathe has asked for an account which has been refused, prays for and for relief. The defendant has demurred, and the 'demurrer must be sustained. The complainant has a plain, adequate, and complete remedy at law, and therefore, under Bection 723, Rev. St. U .8., suitin equity cannot be sustained. Upon proof of his contract, and of the sale of the patent and the organization (If the company, he can at law recover the full amount of his claim. Such proof can be secured without the aid of a court of equity. If ,the defendant is within the hundred-mile limit, he can be subpmnaed as a arid required by a duces tewm to produce his books and papers; if he is beyond that limit, his testimony may in like manner be taken under section 863, ld. All the facts within his knowledge may be thus proved as fully as they could be on an accounting. under section 724, ld., he may be required to produce books or writings in his possessio!1 which contain evidence pertinent to the issue. Demurrer sustained.
MANUF'G
Co. v.
\VARING
et al. ,
(Oi:rcuit Oourt, S. D. New York. DISMISSAL OF BILL-ANSWER FILED.
March 31, 1891.) ,
A complainant is not entitled as of right to dismiss his bill after the answer is filed, setting up that the license to use a patent upon which the suit is brought is fraudulent and void, and showing that defendant is entitled to a decree for its cancellation.
In Equity.
John R. Bennett, for compl!\inant. Wetmore &; Jenner, for defendants. LACOMBE, Circuit Judge. Should the defense set up by the defendants be made out by -the proof, they would be entitled to a d'ecree not simply denying complain-ant's right to money damages, or ah a'ccoimting, but also declaring the license upon which the suit is, brought be fraudulent and "oid, and directing its cancellation. The complainant is therefore, ul)der the authorities, not entitled as of right to dismiss its own bill at this stage,.of the case. Electrical Accumulator Co.·v. Brush' Electric Co., 4 4 Fed. Rep. 602; Steven8 v. Rai1roads,4Fed. Rep. 97. Nor, under all the circumstances, shouldit be allQwed to do so. If complainant suffers, default, defendants iDay take dismissing the complaint, decla'ring the license void, and directing its but such decree will, of course, show upon its fa(:ethat it;;wus entered upon
to
a
88
FEDERAL REPORTER,
vol. 46.
dflfault. Should the complainant be unwilling to 'suffer default, the time to file briefs named in the former order is extended to and including April-6th, and they need not be printed.
FERGUSON
et al. v.
DENT
et al.
(Oircuit Court. W. D. 1'ennessee. April 21, 1891.) 1. CosTs-ATT6i'lNEY'S FEES ON DEPOSITIONS.
On taxation of costs in an equity cause in the federal cQurt the fee oU2.50 on each deposition taken and admitted in evidence on tbe hearing before the court is taxable under section 824, Rev. St., in favor of the party recovering costs; and it is immaterial before wbat officer such deposition was taken, wbether examiner, master, or otherwise. Where the record is printed in the circuit court, and paid for by a receiver under order of the court from funds in bis hands, and sucb printed record is used on appeal in the supreme court without further expense to tbe parties, held, under the circumstances of tbis case, that the expense of printing the record should be taxed in favor of the party recovering costs. Where a receiver is appointed at the instancE' of the plaintiff, and the ultimate decision of the .case l!pon appeal, reversing the decree below, is' adverse to him, tbe receiver's commissions, paid out of the funds in his hands, will not be taxed as cOots against the plaintiff, his appointment being regular and properly made in the case. That the plaintiff does not finally succeed in tbe litigation is not the criterion in determining the propriety, necessity, or legality of a receiver's appointment.
2.
SAME-PllINTED RECORD.
S. SAME-RECEIVER's COMPENSATION.
In Equity. Motion to retax costs. T. B. Edgington, for plaintiffs. Poston & Poston and Turley &- Wr'ight, for defendants. HAMMOJm, J.. In this equity cause a decree was originally rendered for the plaintitls on their bill and for costs. An appeal was taken, and the qlse was reversed in the supreme court, (10 Sup. Ct. Rep. 13,) with directions to dismiss the bill and render judgment for costs against the plaintiffs and the surety on their prosecution Gauds. The costs claimed for defendants are as lallows; Clerk's fees, paid by the !'ecei vel', $ 391 40 .Marshal's . . . . .. 20tl 26 " Exam i ner's .. 8 2U Master's .. on printing record, 500 00 " ., ,. 829 62 Expense" " 2,731 60 Heceiver's commission, .. Docket fee tin;1I hearing, " 20 00 Docket ,. .. 98 depusitions, 245 00 Costs taxed in the supreme {:ollrt, 135 15 Clerk's fees since the appeal, 4975 .. Marshill's .. 53 54 Costs paid by deftindant .oh Walker's (Jpposition, 7'00 6 00 <;losts of transcript in Re Fergu:yon, bankl'\lvt,
on
..
Making inaU claimed by . Of which the clerk has so'taxed all but rec'eIvets fee,'
"- .
._
$5,Ul552 $2,731 60
Leaving as the clerk's taxation,
$2,453 92