United States v. Sanborn

• Decision Date: 14 August 1886
• Citation: 28 F. 299
• Parties: UNITED STATES v. SANBORN.
• Court: U.S. District Court — District of Massachusetts

28 F. 299

UNITED STATES v. SANBORN.

United States Circuit Court, D. Massachusetts.

August 14, 1886

Charles Almy, Jr., assistant district attorney, for the United States.

Frank L. Washburn, for the defendant.

Before GRAY, Justice, and COLT, J.

GRAY Justice.

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, Sec. 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. No 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 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 cases is this more forcibly felt than in the trial of cases like the 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 has 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 Wm.IV.c. 22, giving authority to the courts of law to issue commissions to take the examinations of witnesses abroad, it is still a mere 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 STORY, the fact that the witness resided beyond the reach of a subpoena, 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 STORY and WOODBURY were made under the act of February 28, 1799, c. 19, Sec. 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 other 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 so far from the place of trial that they could not have been summoned or compelled to attend.

The same view applies with increased force to the language of the act of February 26, 1853, c. 80, Sec. 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 subpoenaed 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 F. 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...