TRINIDAD ASPliALTPAYING 00.'11. ROBINSON.

347

TRINIDAD ASPHAJ,T PAVING CO.

(Circuit Court, E. D. Michigan.

v.

ROBINSON.

April 11, 1892.)

C05TB-TAXATION-,AOTIONS AT L A W . ,

In actions at lawthe federal courts must tax the costs against the losiugparty, except in cases where special provision to the contrary, has been made by act of congress, (Rev. Btl. §§ 968,973;) and iu the absence of such provisiontheY.have no authori,ty to modify the rule by reason of hardship or inequity resulting from spe. cial oircumstances.

At Law. Action of replevin brollght by the Trinidad Asphalt Paving Company against Eugene A verdict was directed for plaintiff, and a motion for a new trial denied. The question as to whether costs should follow the judgment was reserved by the court, ancl is now up for ,deterwination. Judgment for plaintiff. Statement by SWAN, District Judge: ' This is an action of replevin for 766 barrels of asphalt that were formerly the property of Carter, Hawley & Co., of New York, both parties tracing title to them. The evidence is uncontradicted that plaintiff, wishing to obtain asphalt of Carter, Hawley & Co., whom plaintiff knew would not sell to it, employed one Coburn to make the purchase for it, -the Trinidad Asphalt COPlpany,-instructing Coburn not to reveal the name of his principal, but to make the purchase as for The asphaltwas bought for the benefit of plaintiff, who had the right to it as against its agent, Coburn, or anyone to whom the latter might deliver it, except a purchaser' in good faith and for value. Coburn, it seems from the facts found by Mr. Justice BROWN, who tried the case, went to Carter, Hawley & Co. for the plaintiff, but exceeded his authority in effecting the purchase. Instead ofrepresenting himselfsimplyas the principal in the transaction, or withholding the name of his employer, he untruly stated that he had no connection with the plaintiff whatever,-astatement which he had no authority from plaintiff to make. Carter, Hawley & Co. delivered to Coburn the asphalt, which he turned over to plaintiff. A month or two afterwards, Coburn made a contract with a, lighterman to go to South Amboy, where the asphalt lay, load it on board his lighter, and take it up the North river. The asphalt was accordingly laden on the lighter, and was insured for transportation to the docks of the plaintiff at Jersey City. Instead of thus forwarding it, Coburn diverted it from its original and proper destination, and sent it to Weehawken, when it was delivered to the West Shore Railroad for transportation and delivery to defendant, and in due course of time came into the possession of defendant, who in good faith had dealt for and purchased it through Coburn from Carter, Hawley & Co., whom he supposed to be the owners of it, and whom he paid for it. 'l.'he asphalt was taken from defendant's possession under the process in this cause. After the commencement of this suit defendant wrote Carter, Rawley & Co., who had received their pay for the property from plaintiff, througb Coburn, asking them to credit him with the amount

348

RDlllRAL REPORTER,

vol. 52.

which he had paid them for the asphalt, and this Carter, Hawley & Co. did. The trial judge held that, because of the allowance of this credit to Robinson by Carter, Hawley & Co., though Robinson, the defendant, bought and paid in good faith, a verdict in his favor for the value of the asphalt in this action of replevin would put four or five thousand dollars in his pocket for.whi9h he had paid no consideration, and for which he would be obliged to account to Carter, Hawley & Co., who had received their pay throughC,,?burn, and thus will be twice paid for the asphalt. The consequence would be that plaintiff would be obliged to resort to an action against Carter, Hawley & Co. to recover the amount .paid by it for the property on Coburn's purchase. To avoid this circuity of action, the court permitted plaintiff to show the fact that defendant had been credited by Carter, Hawley & Co. with the sum paid for the property taken by the writ since the beginning of this suit, and directed a verdict for plaintiff, with nominal damages, reserving the question whether costs to plaintiff should follow the judgment. A motion for 11 new trial was made and overruled. On the foregoing facts both parties claim costs. Griffiin, Warner & Hunt, for plaintiff. O. I. Walker, for defendant.
SWAN, District Judge; (after atating the facta.) i'he statute gi costs to the prevailing party provides as follows: "The bill of fees of the 'clerk, marshal, and attorney, and the amount paid printersandwltnesses, and lawful fees for exemplificationB'and copies of papers necessarily obtained for use on· trials, caSeB where by law costs are recoverable in favor of the prevailing party, shall ):I,e taxed .by a judge or clerkaf the qqurt, and pe inC?lp"ded, in and form a portion of a judgment or decree against thE'll losing PflJty, ,.'" '" "''' Rev. St. U. S. § \l83. In cases of. original jurisdiction this provision has been regarded as mandatory,: OOl.'dexclusiveof all state legislation. Congress having legislated:orithesubJect,itwould seem, on familial' principle, that there is no room :fol' the applicatien. of any other rule of taxation in such. cases tha.n that fixed by the statute. U. S. v. Treadwell, 15 FecL Rep. 532; Cooper v. Steamboat Co., 18 Fed. Rep. 588; The Baltimore, 8 Wall. 377 , 388. Incases removed, from a state court it has been properly held that costs, which have accrued before removal may be added to those taxable under :the act of congress. The autho.rities, however, are not in harmony all this point. In support of taxation of such costs are: Scrippav. Campbell, 22 Int. Rev. Rec. 250; Wolfv. Insurance Co., 1 Flip. 377, and cases cited. Contra are: Clare v. Bank, 14 Blatchf. 445; Chadbourne v. Inaurance Co., 31 Fed. Rep. 625. Section 983 is taken bodily .from the fee act of February 26, 1853. Before the enactment of the statute the practice had generally been in accordance with the statute ofGloucester, (6 Edw. 1. c. 2.) Hathaway v. Roach, 2 Woodb. & M. 68; The Baltimore, 8 Wall. 388. This statute. commonly referred to as the "Fee Bill of 1853." seems therefore to be a substantial adoption of the usage which had so long and generally

in

TRINIDAD ASPHALT PAVING CO.

t1.

ROBINSON.

349

obtained, allowing costs to the successful litigant. Without reviewing in detail the various acts of congress regulating the recovery of costs, which are collated in the opinion in The Baltimore, 8 Wall. 377, 388-393, in the language oiMr. Justice CLIFFORD in that clise, "the conclusion appears to be clear that congress intended to allow costs to the prevailing party as incident to the judgment, as most of the regulations referred to [in the statutes mentioned in the opinion] would be meaningless on any other theory." No intent to recede from this purpose is manifested in the act of 1853, nor in the Revised Statutes. The only qualifications material here of the usage thus recognized by the statute are found in Rev. St. §§ 968, 973. The first of these sections denies costs to a plaintiff or petitioner in a circuit court who recovers less than $500 in a case which could not be brought there, unless the amount in dispute, exclusive of costs, exceeds that sum or value; and refuses costs to a libelant who recovers upon his own appeal less than the sum or value of $300. Section 973 disallows costs to a plaintiff upon a judgment or decre" "for the infringement of part of a patent when the patentee in his specification claimed to be original and first discoverer of any material or substantial part of the thing patented, of which he was not the original and first inventor," unless the disclaimer required by the patent laws had been entered at the patent office before suit was brought. Other sections expressly exempt the United States from liability to costs. The inference from this· exceptional legislation seems strong that congress has defined the only cases in actions at law in which the losing party is absolved from liability for costs·. In equity and admiralty Cases, in which the courts are less trammeled, and may mold their judgments according to the very right of the matter, costs are imposed, withheld, or divided as the facts in the particular case may warrant. Kittredge 'Race, 92 U. S.116; Trustees v. Greenough, 105 U. S. 535; Union 00. v. Illinois Midland Ry. Co., 117 U. S. 434,481, 6 Sup. Ct. Rep. 809; U. S. v. The Malek Adhel, 2 How. 210; The Atlas, 93 U. S. 312. No such latitude is accorded, however, to the courts in actions at law, notwithstanding considerations of hardships calling for exceptions to the enforcement of the statute. In U. S. v. Schurz, 102 U. S. 407, the defendant was sued in regard to manner in which he had discharged certain official duties as secretary of the interior, in which no intentional wrong was charged or proved against him.. Upon motions for taxation of costs, the court, through Mr. Justice MILLER, admitting the hardship of making the defendant pay the costs out of his own pocket, said: "But a careful examination of the authorities leaves us no option but to follow the rule that the prevailing party shall recover of the unsuccessful one the legal costs which he has expended in obtaining his rights." So, too, costs followed the judgment in Kendall v. U. S., 12 Pet. 524, and U. S. v. Boutwell, 17 Wall. 604, in both of which the officers sued were guilty. of no intentional wrong. In Kittredge v. Race, 92 U. S. 116, 121, the distinction between the powers of the court in common-law and equity cases in the matter of costsis clearly stated by Mr. Justice BRADLEY. He says:

350

;"'Y'/::'I'EDERAL REPoRTER"vol.

52,.

"Inactions at:Jaw itJsa general lulethatthe losing partiellortbe parties against whom. rendered are, to pay the costs, apd J;l,oapportionment of,the costs ,ismaQe,j:>E!tweenthem. is Hable for whateyer may be their relJpectjve iIlt!lrest, jn the sUbject-n1atter pi the suit. ", In equity it is different. ' 'rher,e'the coUt't 'has a discretion as to the costs.l'I.rtdmay iinpose them tlll upori'oIie party, 'or may: divide them in such manner as it sees 'fit." Tl¥ opiyeJ!:bepti()h'tQ tpis npt,expressly made by statu,te is where the' CQBl'nS cause. In Railway, Co. v. Swan, 111 ,4 Sup; ,Ct. Rep; Mr. Justice MATTHEWS says: practice and universally recognized rule of the cOlnxnQn Iiiw in a6tions at law, tlle prevailing party is, entitled to recover costs; the'exception that, where there is no jurisdiction in the c:l6lUt to determine thelitiglition, the'cause must be'dismissed for that reason" and,as, the ,court ,can render no jUdgment fOl' 'or against either party, it cann9trendflra judgmen.t even for costs." Thircase at baria apparently a. hard one for the defendant. At the time of suit brought :he'wasclearly entitled to the possession of the property which he had acquired in. good faith. Unfortunately for h,im, by his OWn inadvertent action in asking and obtaining credit with Carteri Hawley & Co. £01 the asphalt taken from him by the writ, he renounced the title he had received on his. purchase, and accepted in its stead ,reclilmation on Carter, Hawley & Co. The equities a1'e: with him" to the recovery of'his costs, but the settled rules of decision incases at .law will not permit of exception in his favor, and costs mustfoU()w the judgment.

M.ORTON '11.

(Circu.it

Crrv

OF NEVADA.

qourt

oj A:ppeatB, E,ft.1'f!,th O£rcuu. Ootober 8.1892.)

LmITATION OJ' AO'fIONB-RuNNING OJ' STATUTE-MUNICIPAL BONDS.

Bonds lltsUedby the toWIl of Nevada, M9.· in 1870, were repudiated, and the pay· ment of interest refused, in 1878. In 1877 action was brou.\rht to reCOVer upon the past;.;due cou'P0ns, but by agreement was suspended pending a suit in the supreme court of. the Ullited States,.whereln tMaotauthoriziJl,Jl:such issues was declared unconstitutional. It was subsequently taken up in 1S81, and judgment given for defendant. 'Thereafter an aetion for money had and received was begun. HeLd, it wasl>arre.d by the ¥is!!ouri stat"j;;e. 0,1; limitations. which began to run at least from the repudiation of the bonds,· and which limits actions on implied con· tracts to five years. 41 Fed. Rep. 582, aftlrmed.

In Error to the Circuit Court of the United States for the Western District of Missouri; . . . Action by .William H. Morton against the city of.Nevada. in the state of Missouri, for money,hali and redeived. Trial by the eourt on an agreed statement offaets. Judgmentfordefendant. 41 Fed. Rep. 582. Plaintiff brings error. Affirmed. . Statement: by CALDWELL, Circuit Judge: