Barber v. Crocker
| Decision Date | 21 October 1887 |
| Citation | 13 N.E. 491,145 Mass. 203 |
| Parties | BARBER v. PARSONS. SAME v. WELCH. SAME v. CROCKER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from taxation of costs. The three cases were referred to a referee, and by him tried together, and a report returned in each case in favor of the defendant. The superior court for Hampden county affirmed the taxation of costs as made by the clerk of the court, and the plaintiff appealed. The facts are sufficiently stated in the opinion.
Newell & Jennings, for plaintiff.
At common law, costs were not allowed. Sayer, Costs, 64. Costs were first allowed by the statute, 23 Hen. VIII. c. 15. See Maus v. Maus, 10 Watts, 87. Statutes giving costs are to be strictly construed. Cone v. Bowles, 1 Salk. 205; Rex v. Inhabitants of Glastonby, Cas.Temp.Hardw. 357; Dwar.St. 644. Statutes in derogation of the common law are to be strictly construed. Coke, Inst. 282, L. 3, § 485; Crayton v. Munger, 11 Tex. 234. It is said that various rules of court and various statutes are established for the sake of discouraging litigation. Some go so far as to say that costs are allowed for this purpose, as a sort of punishment for indulging in litigation. The plaintiff protests against this theory. Costs are or ought to be allowed simply as an indemnity-a recoupment-to the successful party for his expenses in the suit. The law cares more that justice should prevail than that a man should be punished for going to law. The growth of the law upon this subject is all in favor of this interpretation. These three cases, so far as all matters of trial and costs are concerned, should be treated as one. A statute was passed in 1784 (chapter 28) which allows the plaintiff to tax but one bill of costs in several actions, which might have been joined in one. And in criminal cases witnesses for two or more cases pending at the same time before the same tribunal shall not be allowed full travel and attendance in each case. See Pub.St. p. 1131, § 39. The practice by analogy in cases where the same principle or cause of action is at issue in different cases is well laid down in Witherlee v. Insurance Co., 24 Pick. 67. See, also, Kimball v. Thompson, 4 Cush. 441;City of Springfield v. Sleeper, 115 Mass. 587;Com. v. Robinson, 1 Gray, 555;Com. v. James, 99 Mass. 438;Com. v. Powers, 109 Mass. 353. The principle we contend for is upheld in many Massachusetts cases. West v. Brock, 3 Pick. 303; Ewer v. Beard, Id. 64. And see Griswold v. Sedgwick, 3 Wend. 329;Mason v. Waite, 1 Pick. 458;O'Connell v. Bryant, 126 Mass. 232;Fales v. Stone, 9 Metc. 318;Miller v. Lyon, 6 Allen, 514. The attention of the court is directed to the fact that the certificates are filled out separately for each case, just as if the defendants had severally paid in each case the entire amounts indicated by the certificates. The correctness of the certificates is overturned by the finding which expressly states that they did not receive these full amounts. The plaintiff's claim is impregnable. He should not be forced to pay costs not incurred. He is willing to pay costs incurred, such as attorney's and clerk's fees. These witnesses were in attendance in but one case, in law or in fact. They had been paid in but one. The plaintiff should pay but one. See Upton v. Pratt, 106 Mass. 346;Mathers v. Cobb, 3 Allen, 467;Meagher v. Bachelder, 6 Mass. 444;Dawes v. Bell, 4 Mass. 106;Paine v. McIntier, 1 Mass. 68;Hinman v. Booth, 20 Wend. 666.
Whitney & Dunbar, for defendants.
The travel and attendance of all the witnesses in each were properly taxed by the clerk. Pub.St. c. 198, § 1; Id. c. 199, § 14. Neither summons nor payment is necessary to entitle a prevailing party to recover for his witnesses who certify. Attendance upon request is enough. See Taylor v. Jaques, 109 Mass. 270;Day v. Woollen Co., 1 Gray, 420; Taylor v. Railroad Co., Id. 422. If the plaintiff had prevailed in all the cases, would he not have been entitled to tax for all his witnesses in each case? If not, what would be the rule of apportionment?
These are three actions of slander brought by the same plaintiff against three different defendants for the same or similar defamatory words, and, by agreement of parties, they were referred to the same referee, who heard them together on the fifteenth, sixteenth, and seventeenth days of December, 1886, and made an award in each case in favor of the defendant, on which judgment was entered. A certificate of witnesses has been filed in each case, from which it appears that the same 27 witnesses for the defendants attended in each case, the same number of days, and traveled the same number of miles, with a single exception. H.B. Lewis certifies, in the first and second cases, that he attended one day, and traveled twenty miles; and, in the third case, that he attended one day, and traveled two miles. The number of days of attendance in each case is 73. The number of miles of travel in the first and second cases is 1,202, and in the third case 1,184. The amount taxed for attendance in each case is $36.50. The amount taxed for travel in each of the first and second cases is $60.10, and in the third case $59.20; making the whole amount taxed for travel and attendance $96.60 in each of the first and second cases, and $95.70 in the third case,-being at the rate of 50 cents a day for attendance, and 5 cents a mile for travel. Pub.St. c. 199, § 14.
The principles which must govern these appeals are declared in Miller v. Lyon, 6 Allen, 514, and Day v. Woollen Co., 1 Gray, 420. It must appear that the attendance of the witnesses “was reasonably and in good faith procured by the party making the taxation, and that they were paid, or actually attended, so as to be entitled to their fees.” The certificates “are competent prima facie evidence for the allowance of the amount certified, but are not conclusive;” and the court “may decide upon the reasonableness of the conduct of the party as to the number of witnesses, and the length of their attendance, in order to secure good faith, and prevent oppression or reckless expense.” 6 Allen, 515. “If the witnesses were summoned and...
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