694

91 FEDERAL REPORTER.

delphia, the surety on the bond so tendered by the defendant. and accepted by the court, applied to the court for an order granting the surety permission to substitute another bond for such bond so before received, upon the ground that the surety did not contemplate issuing a bond whereby the liability of the surety would extend to the costs and damages directed to be paid by the decree of the trial court. The motion is denied, without passing upon the merits of the application, because the action has been transferred from this court to the circuit court of appeals, and that court has now exclusive cognizance of the matter. It is true that in O'Sullivan v. Connors, 22 Hun, 137, where there was a similarity of facts and procedure, the motion for correction was made in the first instance at special term, although an appeal to the general term had been perfected, and the latter branch of the court affirmed the order granting the motion. Such, however, does not seem to be the practice in the federal courts, Rnd, On principle, should not be. When all the steps necessary to perfect an appeal to an appellate court have been properly taken, the action is within the control of that court, and the trial court should not engage in undoing or modifying the proceedings by which such jurisdiction has been obtained. The appellate 'court has been accustomed in instances similar to exercise ,jurisdiction, and it would appear that its jurisdiction is exclusive. Railroad Co. v. Schutte, 100 U. S. 644-647; Draper v. Davis, 102 U. S. 370; Rubber Co. v. Goodyear, 6 Wall. 153-157; French v. Shoemaker, 12 Wall. 86, 99; Jerome v. McOarter, 21 Wall. 17; Bigler v. Waller, 12 Wall. 142, 149; McClellanv. Pyeatt, 49 Fed. 259, 260; Morgan's L. & T. & S. S. Co. v. Texas Cent. Ry. Co., 32 Fed. 525. The discussion of Hammond, J., in Ferguson v. Dent, 29 Fed. 1, and the note by the learned judge to his opinion, is a valuable contribution to this subject. In view of these authorities, the motion is denied; without prejudice to renewing the same before the circuit court of appeals.

EDISON ELECTRIC LIGHT CO. v. E. G. BERNARD CO. et aL (Circuit Court, N. D. New York. January 26, 1899.)
COSTS IN PATENT .SUITS-ExCESSIVE AND IRRELEVANT EVIDENCE.

A successful defendant In a patent suit who has overloaded the record with a large amount of matter, mainly the testimony of experts, which is irrelevant or Immaterial, and abounding in repetition and prollx disquisitions, wlll be denied costs in the proportion which such testimony bears to the whole amount of evidence in the record.

This was a suit in equity by the Edison Electric Light Company against the E, G. Bernard Company and others for alleged infringement of a patent. The bill was heretofore dismissed, after a hearing on the merits. 88 Fed. 267. The cause is now heard on a motion by defendants to be allowed full costs. Samuel O. Edmonds, for complainant. Seward Davis and Barton & Brown, for defendants.

EDISON ELECTRIC LIGHT CO. V. E. G. BERNARD CO.

695

COXE, District Judge. The defendants' counsel) in the memorandum submitted upon this motion, have exhausted the list of adjec· tives belonging to legal nomenclature in expressing their opinion of the absolutely untenable character of the complainant's case. In their opinion the greater part of the complainant's testimony was "irrelevant," its case "hopeless," the suit "unjust" and the complainant's conduct in maintaining it "a willful and malicious tort." -To the extent of holding that the action cannot be maintained the court agrees with them. The court was also of the opinion that a volume 2t inches in thickness and containing nearly 1,000 printed pages was unnecessary to meet such a cause of action. Upon the last proposition the defendants differ with the court. If a nautical metaphor be permissible, they maintain on the one hand that their adversary attacked them in a mud scow, and on the other, that it was imprudent for them to meet the foe until they were defended by an "Oregon." If the defendants are right as to the worthlessness of the complainant's record it would seem that they are hardly in a position to dispute the proposition of the court as to the overweighted character of their own record. Indeed, as I now recall the oral argument, it was contended by at least one of the counsel for the defendants, that a large part of the record on both sides was wholly useless, and that the defendants had been beguiled into following the complainant wherever it led knowing that they were joining issue upon many questions having nothing whatever to do with the real controversy. I have no doubt that the position taken in the decision (88 Fed. 267) is correct, and a re-examination confirms me in this opinion. I am inclined to think, however, that it will be more equitable to allow the defendants a larger proportion of their costs than there suggested. I find on looking over the record, with this point especially in mind, that the proportion of the evidence which is unobjectionable is somewhat larger than I estimated it to be at the time of the decision. The principal ground of criticism relates to the depositions of the expert witnesses. That this testimony abounds in repetition and irksome and prolix disquisitions, cannot be denied. There are too many experts and they talk too much. A self-evident proposition is not strengthened by being repeated ad infinitum. Truth does not need such artificial support; it will stand alone. What is said of the defendants' record applies with even greater force to the complainant's record, but the bill is dismissed and the entire expense that no impartial falls upon the complainant. In brief, it is min!l can examine this record, in the light of the simple issue in· volved, without being convinced that it is an imposition upon court, counsel and parties alike. Such records obstruct the path of truth, . retard equity and tend to shorten life and to promote insanity. If the bar would unite with the bench in confining the records in equity causes within reasonable limits, it is thought that the 'reform would be even more advantageous to the former than to the latter. I have now examined the record with considerable care and, with· out going into details, have reached the conclusion that defend-

696

91 FEDlllRAL

ants are' entitled to ,three"fourths instead(jf' one-half their costs. The decree$hould, I think, be ;a.mended by striking out "one-half" and inserting "three-fourths" in' 'lieu thereof.
GEAND TRUNK RY. CO. v. CENTRAL VT. R. CO. (Circuit Court, D. Vermont. December 3, 1898.)
L

Neither the mortgagee of a' railroad property nor the purchaser at a sale under the mortgage is entitled to enforce the ,covenants of a lease made by after thEl execution of the mOrtgage, binding the lessee to make good all depreciation of the property from wear or otherwise dUring the term' of the lease, when the depreciation was such as would or might have followed the use of the property by the mortgagor, and' would ])ot have constitllted,wllllte, which could have been restrained :, , or recovered for by the mortgagee.
SAME-PR.EFERRED qLAIMS

OF lfIORTGAGEE-SUBSEQUENT LEASE OF ROAD.

2.

pany for "the loss of propertywliile in the possession of said corporation" prefe.vence, over mortgages 'given by the, company, applies only to liabilities gJ,'owing out of the. olWration of ,a railroad within the state, and doesnot include a claim on the covenants of a lease of a railroad in another state. ' .. ' ,
011 motion for leave to intervehein foreclosure suit, and for the allowance of claims as ,preferredidebts under the state statute. James Byrne,'for petitioners. Michael H.Oardozo, Henry Orawford, Elmer P. Rowe,and Oharles M. Wilds, for opposing parties. '

R. L. 1880, § 3353 (V. S. § 38(8),' giving claims against a railroad com-

OF VERMONT STATUTE,

'WHEELER; District Judge·. llthis is a creditors' bill in behalf of aU' who may come in, and in' which foreclosures are pending. The Ogdensbnrg & Lake CharoplainRailroad Comp-any mortgaged its road, which is in the state of New York; April 1, 1880, "and all and singular the railway, rails, bridges, switch(!S; privileges, rights and teal estate, statiOn hOus.es, stol'ehouses, elevators, and all buildings' and 1ixtures,ot i every kind and., description; now 'Owned by said,c.ompany,or which may be hereafter owned or acquired 'by as hereina'fter stated, together with ,all the cars" freight cars, and locomotives, engines, and aU other cars, and all shop tools, fuel, machinery, and other propertY, now oWned or hereaftet'to be owned or acquired, by said compaay andlnany waybelongitig or appertaIriing to tlie said railroad," to to secu,re bonds,---t!hd Ju'ile 1, 1886, entered into ahagreel1lent fOl'theoperatiotiofl:tlle road which was assumed by the"defendant, the Oentral Railroad Oompany,1;Jy which the latter agreed with the form!'!r, continuance of this agreement, to keep up ,and maint#in in good order and cQndition, by repairs 'and the safuemay be+ieeded, 'all the present equipment oftlie ;party of the part, and to add such new cars and engines lis may be 'to provide aoll depreciafion as the'stimemay'from tlme to time occur; "to mark distinctly and in the usual manner all such new locomotives and other' roll-