Haines v. McLaughlin

• Decision Date: 22 October 1886
• Citation: 29 F. 70
• Court: U.S. District Court — Northern District of California
• Parties: HAINES v. MCLAUGHLIN and others.

29 F. 70

HAINES v. MCLAUGHLIN and others.

United States Circuit Court, N.D. California.

October 22, 1886

M. A Wheaton and John Garlen, for plaintiff.

Hull McAllister and T. V. O'Brien, for defendant.

Before SAWYER, circuit judge, and SABIN, district judge.

SAWYER J.

Since the case of Spaulding v. Tucker, 2 Sawy. 50, decided in August, 1871, after careful consideration, and, as was supposed at the time, in accordance with the then existing authorities, the rule has been regarded as settled in this circuit that traveling fees of witnesses coming voluntarily upon the request of a party, without having been subpoenaed from another district, more than 100 miles from the place of trial, and beyond the reach of a subpoena, could not be taxed as costs against the losing party. This principle was recognized and adopted by Mr. Justice MCLEAN in Dreskill v. Parish, 5 McLean, 241; by Judge LEAVITT in Woodruff v. Barney, 2 Fish.Pat.Cas. 245; and by Mr Justice NELSON and Judge SHIPMAN in an anonymous case, (5 Blatchf. 134;) and the principle is the same acted upon by Mr. Justice GRIER in Parker v. Bigler, 1 Fish.Pat.Cas. 289. In Spaulding v. Tucker, after considering the cases herein cited, it was said by the judge delivering the opinion:

'I think, under the present statute, to attend 'pursuant to law,' is to attend under the obligatory requirements of the law. The party may request, but the law knows no request. It commands or is silent, and a party who attends 'pursuant to law,' attends pursuant, or in obedience to the commands of the law.' In a recent case, however, that distinguished jurist, Mr. Justice GRAY, of the supreme court, with the concurrence of Mr. Circuit Judge COLT, in the First circuit, overruled these decisions, in U.S. v. Sanborn, 28 Fed.Rep.299, and on the authority of this case we are asked to reconsider the rule, as long established in this circuit. Did that case stand alone, I should not hesitate to yield my own impressions, whatever they might be, to authority so eminent. But we have seen that it does not stand alone, and that in three, at least, of the other circuits, the ruling has been different, having the sanction of three eminent justices of the supreme court. In U.S. v. Sanborn the court seems to attach some importance to the fact that the rule adopted, had long prevailed in that circuit, whatever the case might have been in other circuits. But the case is governed by the same statute, which is applicable to all the circuits. Whichever rule is the proper one, should, therefore, be followed in all the circuits, and it is highly important that the point should be authoritatively settled by a decision of the supreme court. With the utmost respect for those taking the other view, I shall, for the present, adhere to the rule heretofore established in this circuit; and my associate, for the purposes of this case will adopt the view of Mr. Justice GRAY. If desired, a certificate of opposition of opinion will be made, and it is to be hoped that the case will be taken up for an authoritative decision.

I will venture to make an additional observation in support of the rule, apparently adopted...