Bate Refrigerating Co. v. Gillette

• Decision Date: 02 August 1886
• Citation: 28 F. 673
• Parties: BATE REFRIGERATING CO. v. GILLETTE and others. [1]
• Court: U.S. District Court — District of New Jersey

28 F. 673

BATE REFRIGERATING CO. v. GILLETTE and others. ^[1]

United States Circuit Court, D. New Jersey.

August 2, 1886

Dickerson & Dickerson, for complainant.

John R Bennett, for defendants.

WALES J.

An interlocutory decree against the defendants for infringing the complainant's patent has been entered in this suit and reference made to a master for an accounting of profits and damages. Much testimony has already been taken by the master, at different times and places, for both parties; and the complainants having closed their prima facie case, the master, on application of the defendants, and after hearing complainant's objections thereto, made and entered the following order on his record, to-wit:

'The master will resume and continue the accounting in this cause on the part of the defendants at the North-Western Hotel, in the city of Liverpool, England, on the seventeenth day of August, 1886, at 12 o'clock M. of said day, and continue thereafter, pursuant to adjournments from day to day, with the examination of such witnesses as may be produced on the part of the defendants; and thereafter adjourn to the St. James Hotel, on the corner of Piccadilly and Berkley streets, in the city of London, England, and there proceed with the examination of such witnesses as may be produced before him on the part of the defendants.

'And it is further ordered that the evidence to be adduced in Liverpool and London may be taken orally, in the presence of counsel, or upon written interrogatories, direct and cross, as counsel for the complainant may elect, within four days after a personal service of this order. And if counsel shall fail or neglect to make this election within the said time, (four days,) and to give the counsel for the defendants and the master written notice of the result of the said election within four days after personal service of this order, then the master orders and directs that the examination of the witnesses to be produced before him in Liverpool and London aforesaid shall be conducted by written interrogatories.

'It is further ordered that the defendants shall have until August 2, 1886, to file with the master, and serve upon the complainant's counsel, a copy of the interrogatories, together with the names of the witnesses to whom the same are to be propounded; and the complainant shall have until August 12, 1886, within which time to file with the master, and serve upon the defendants' counsel, such cross-interrogatories as they may desire to propound to the witnesses to be examined.

'It is further ordered that if the complainant's counsel elect to proceed by oral examinations of the witnesses the defendants' counsel shall file with the master, and serve the complainant's counsel, with, a list of the names of the witnesses proposed to be examined on the part of the defendants, on or before the first day of August, 1886, and no witnesses shall be examined whose names are not included in the said list.

'And it is further ordered that the costs of the proceedings of the master, under and in pursuance of this order, shall in no event, or under any circumstances, be taxed against the complainant at a greater sum than would properly be taxed against them under the rules and practices of this court if the same evidence had been taken before and by the master from the same witnesses produced before him in the city of New York, and without any fees for mileage.'

This order was made on the twenty-second of July, 1886, and on the twenty-sixth of the same month the complainant gave notice to the master of its election to have the testimony taken orally, but expressly reserving any rights of objection to the order, or to any testimony taken thereunder. The master having heard and considered the objections to the making of the order, and overruled them, the complainant now moved the court to vacate the order on the ground that it is irregular, improper, and without authority.

The master is a judicial officer, acting as the representative and substitute of the court which appointed him, and while there can exist no doubt of the power of the court, for sufficient cause, to vacate or modify any order made by him, it is not the general practice for the court to interfere with his acts and proceedings, in limine, but to wait until the coming in of his report before hearing exceptions by either party to the cause to any irregularity or excess of authority on his part. Union Sugar Refinery Co. v. Mathiesson, 3 Cliff. 146; Wooster v. Gumbirnner, 20 F. 167.

There may be some justification...