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the prevailing party is entitled to costs as of Upon motion of defendant and against the right, will prevail over a contrary rule of the objection of plaintiff, Judge Hand appointed an auditor (254 Fed. 625), with instructions"to make a preliminary investigation as to the 3(1)-ERROR IN ORDER WITH RESPECT TO facts, hear the witnesses, examine the accounts

14. MANDAMUS 3(11)

PROHIBITION

COSTS OF REFERENCE WILL NOT SUPPORT.

While an order referring an action at law to an auditor for a preliminary hearing was erroneous, so far as it provided that the expense of the hearing should be paid by one or both of the parties in accordance with the determination of the trial judge, instead of providing that the expense should abide the result of the action, the error does not require the granting of writs of mandamus or prohibition, as redress may be had through application for a modification of the order, or after final judgment by writ of error.

Mr. Justice McKenna, Mr. Justice Pitney, and Mr. Justice McReynolds dissenting.

On Petition for Writ of Mandamus and/or Writ of Prohibition.

Original petition by Walter Peterson, as receiver of the Interstate Coal Company, Incorporated, for writs of mandamus and/or prohibition directed to Augustus N. Hand, Judge of the District Court for the Southern District of New York. Writs denied.

See, also, 40 Sup. Ct. 178, 64 L. Ed.

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of the parties, and make and file a report in the office of the clerk of this court, with a view to simplifying the issues for the jury, but not to finally determine any of the issues in the action, the final determination of all issues of fact to be made by the jury on the trial, and the auditor to have power to compel the attendance of, and administer the oaths to, witnesses, the expense of the auditor, including the expense of the stenographer, to be paid by either or both parties to this action, in accordance with the determination of the trial judge.”

The auditor was further ordered to report on certain facts under 10 classifications. The design of this was largely to separate items in dispute from those as to which there was no real dispute, and also to set forth the detailed facts on which the specific claims

*305

made were rested; *but the auditor was also thereby required to express his opinion on disputed issues thus:

"6. The various penalties, commissions, cash discounts, and other deductions which defendant claims to be entitled to deduct from the in

*Mr. Abram J. Rose, of New York City, for voice price of the various shipments, the items petitioner.

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thereof which are admitted by plaintiff as proper deductions, and the items in dispute, *Mr. George Zabriskie, of New York City, with his opinion as to each of such disputed for respondent. items.

"7. His opinion as to the net amount due on Mr. Justice BRANDEIS delivered the opin- each invoice of coal sold and delivered to deion of the Court. fendant."

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Thereupon application was made here for leave to file this petition. It prays that Judge Hand and the auditor named be prohibited from proceeding under the order appointing him; and it prays, also, that Judge Hand, or such other judge who may at the time hold the trial term of that court, be commanded to restore the case to the trial calendar, and that the same be tried in the regular and usual way. Leave to file the petition was granted (40 Sup. Ct. 178, 64 L. Ed. -), and an order to show cause issued. The petitioner insists that the District Court is without power to make the order appointing the auditor, and that proceedings thereunder would violate the Seventh Amendment to the Federal Constitution.

*Peterson had brought an action at law in that court against Arthur Sidney Davison to recover a balance of $21,014.43, alleged to be due for coal sold and delivered as shown by a long schedule annexed. The answer substantially admitted the items set forth in the schedule filed by plaintiff, but denied that it presented a full account of the transactions between the parties, and alleged that there were other deliveries of coal and other [1] First. Objection is made by respondent payments which the defendant had made, and to the jurisdiction of this court. It is inalso that he was entitled to additional allow-sisted that the District Court had jurisdicances. It further alleged, by way of counterclaim, that the plaintiff was indebted to him for failure to perform its contracts for coal in the sum of $9,999.10. In response to a demand for a bill of particulars, defendant filed schedules containing more than 200 items which he proposed to establish by way of defense.

tion of the parties and of the cause of action; that if the auditor should proceed to perform the duties assigned to him, and his report should be used at the trial before the jury, the plaintiff could protect his rights by exceptions which would be subject to review by the Circuit Court of Appeals; and that the writs prayed for may not be used

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

alleged to arise, even when the items to which they relate remain in dispute. See Fair v. Manhattan Ins. Co., 112 Mass. 329.

merely to correct errors. But if proceedings, to some of the facts out of which liability is pursuant to the appointment of an auditor would deprive petitioner of his right to a trial by jury, the order should, as was said in Ex parte Simons, 247 U. S. 231, 239, 38 Sup. Ct. 497 (62 L. Ed. 1094) "be dealt with now, before the plaintiff is put to the diffi

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The order expressly declared that the auditor should not "finally determine any of the issues in this action, the final determination of all issues of fact to be made by the jury culties and the courts to the inconvenience at the trial"; but it did not provide affirmthat would be raised by" a proceeding "that atively what use should be made of the report ultimately must be held to have been requir- at the trial. It may be assumed that, if aced under a mistake." The objection to our cepted by the court, the report would be jurisdiction is unfounded. We proceed, there-admitted at the trial before the jury as prima fore, to the consideration of the merits of the facie evidence both of the evidentiary facts petition.

[2] Second. The question presented is one of power in the District Court. If, under any circumstances, it could appoint an auditor with the duties here prescribed without the consent of the parties, the facts clearly warranted such action in this instance. The plaintiff sued for a balance alleged to be due on an account annexed containing 298 items. The defendant set up another account containing 402 items. Included in the latter, besides

certain charges against defendant for additional deliveries, were over 30 cash items of credit not allowed for in the plaintiff's account. These 402 items were alleged to arise out of 123 different deliveries of cargoes (or partial cargoes) of coal made on 91 different days during a period of 11 months. The coal delivered was of various kinds and the invoice prices for the same kind differed from time to time. In respect to most of these deliveries, there were claims for allowances by way of penalties, commissions, and cash discounts; and, as to some, there were claims for allowances on account of freight.

and of the conclusions of fact therein set

forth. The report, being evidence sufficient to satisfy the burden of proof (Wyman v. Whicher, 179 Mass. 276, 60 N. E. 612), would tend to dispense with the introduction at the trial before the jury of evidence on any matter not actually in dispute. The appointment of the auditor would thus serve to shorten the jury trial, by reducing both the number of facts to be established by evidence and the number of questions in controversy. A more intelligent consideration of the issues submitted to the jury for final determination

would result.

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eral Constitution there did not exist in EngThird. Prior to the adoption of the fedland, or so far as appears in any of the colonies, any officer, permanent or temporary, who, in connection with trials by jury, exercised the powers of an auditor above described. An official called "auditor" had long been known as part of the judicial machinery in certain cases brought in the commonlaw courts both of England and of the colThe District Court found that, in order to onies; but the functions of the auditor in render possible an intelligent consideration of those cases were different. In the commonthe case by court and jury, it was necessary law action of account auditors were appointto appoint an auditor and confer upon him ed in England, from the earliest times, to two functions. The first was to segregate take the account, after the interlocutory those items upon which the parties agreed judgment quod computet had been entered. and to classify those actually in controversy, But the parties were entitled to a jury trial and thus, having defined the issues, to aid before the interlocutory judgment was rencourt and jury by directing their attention to dered; and further issues of fact arising bethe matters in dispute. The second function fore the auditor were not passed upon by of the auditor was to form a judgment and him, but were certified to the court for trial express an opinion upon such of the items as by a jury. The use of this form of action he found to be in dispute. In order to perwas limited to cases where the defendant was form these functions, the auditor would be under obligation to account to the plaintiff required, not merely to examine books, vouch- as guardian, bailiff, or receiver of his propers, and *other papers, and to make computa-erty. In Maryland, by Acts 1785, c. 80. § 12, tions, but to hear and pass upon conflicting the power of the court to appoint auditors testimony of the parties and of other witnesswas extended to all cases in which it might es. This full hearing, while obviously necesbe necessary to examine and determine acsary to enable the auditor to form a trust-counts; but the jury trial was not affected worthy judgment on the disputed items, would thereby, for the proceedings thereon were serve also to narrow the field of controversy. to be "as in cases of account."2 In ConnectiFor such a tentative trial acts as a sifting 1 See Prof. Langdell, 2 Harvard Law Review, 241, process, by which misunderstandings and mis-251-255; Holmes v. Hunt, 122 Mass. 505, 512, 23′ Am. conceptions as to facts are frequently remov- Rep. 381. ed. In the course of it many contentions or assumptions made by one party or the other are abandoned. Agreement is thus reached as 40 SUP.CT.-35

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2 See United States v. Rose, 2 Cranch, C. C. 567, Fed. Cas. No. 16,193; Barry v. Barry, 3 Cranch, C. C. 120, Fed. Cas. No. 1,060; Bank of United States v. Johnson, 3 Cranch, C. C. 228, Fed. Cas. No. 919.

cut auditors were appointed by the court in ervation of the right. The limitation imposed actions of "book debt," and the same prac-by the amendment is merely that enjoyment tice was early introduced in Vermont and of the right of trial by jury be not obstructed, other states; but in this action the report of the auditor, if accepted by the court, is a substitute for the jury and operates to deter

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mine the issues of fact. In New York *actions on long accounts are determined now. as in colonial days, by referees, instead of by a jury.4

The office of auditor, with functions and powers like those here in question, was apparently invented in Massachusetts. It was introduced there by chapter 142 of the Acts of the Legislature of the year 1818, and as a part of the judicial machinery it has received the fullest development in that state. No act of Congress has specifically authorized the adoption of the practice in the federal courts. We have therefore to decide, not only whether such appointment of auditors is consistent with the constitutional right of trial by jury, but also whether it is a power inherent in the District Court as a trial court.

[3] Fourth. The command of the Seventh Amendment that "the right of trial by jury shall be preserved" does not require that old forms of practice and procedure be retained. Walker v. New Mexico & Southern Pacific Railroad, 165 U. S. 593, 596, 17 Sup. Ct. 421, 41 L. Ed. 837. Compare Twining v. New Jersey, 211 U. S. 78, 101, 29 Sup. Ct. 14, 53 L. Ed. 97. It does not prohibit the introduction of new methods for determining what facts are actually in issue, nor does it prohibit the introduction of new rules of evidence. Chang

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es in these may be made. New de*vices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice.5 Indeed, such changes are essential to the pres

The report was not admitted before the jury as prima facie evidence of the truth of the statements or conclusions of the auditor. McCullough v. Groff,

2 Mackey (D. C.) 361, 366.

3 Sulzer v. Watson (C. C.) 39 Fed. 414; Connecti

cut General Statutes, § 5752 (Ed. of 1918); Act of Vermont, October 21, 1782, Slade's Vermont State Papers, 456; Hall 7. Armstrong, 65 Vt. 421, 26 Atl. 592, 20 L. R. A. 366; Missouri, Wagner's Stat. 1041,

§ 18; Edwardson v. Garnhart, 56 Mo. 81.

and that the ultimate determination of issues of fact by the jury be not interfered with.

[4-6] In so far as the task of the auditor tion is, in essence, the same as that of pleadis to define and simplify the issues, his funcing. The object of each is to concentrate the controversy upon the questions which should control the result. United States v. Gilmore, 7 Wall. 491, 494, 19 L. Ed. 282; Tucker v. United States, 151 U. S. 164, 168, 14 Sup. Ct. 299, 38 L. Ed. 112. No one is entitled in a civil case to trial by jury, unless and except

so far as there are issues of fact to be deter-
mined. It does not infringe the constitu-
tional right to a trial by jury to require, with
a view to formulating the issues, an oath by
each party to the facts relied upon. Fidelity
& Deposit Co. v. United States, 187 U. S. 315,
23 Sup. Ct. 120, 47 L. Ed. 194. Nor does the
requirement of a preliminary hearing infringe
the constitutional right, either because it in-
volves delay in reaching the jury trial, or be-
advance the evidence which the adversary
cause it affords opportunity for exploring in
purposes to introduce before the jury.
tal Traction Co. v. Hof, 174 U. S. 1, 19 Sup.
Ct. 580, 43 L. Ed. 873. In view of these deci-
sions, it cannot be deemed an undue obstruc-
tion of the right to a jury trial to require a
preliminary hearing before an auditor.

Capi

[7, 8] Nor can the order be held unconstitutional, as unduly interfering with the jury's determination of issues of fact, because it directs the auditor to form and express an opinion upon facts and items in dispute. The report will, unless rejected by the court, be ad

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mitted at the jury trial as *evidence of facts and findings embodied therein; but it will be treated, at most, as prima facie evidence thereof. The parties will remain as free to call, examine, and cross-examine witnesses as if the report had not been made. No incident of the jury trial is modified or taken away either by the preliminary, tentative hearing before the auditor or by the use to which his report may be put. An order of a court, like a statute, is not unconstitutional because it endows an official act or finding with a presumption of regularity or of verity. Marx v. Hanthorn, 148 U. S. 172, 182, 13 Sup. Ct. 508, 37 L. Ed. 410; Turpin v. Lemon, 187 U. S. 51, 59, 23 Sup. Ct. 20, 47 L. Ed. 70; Reitler v. Harris,

Steck v. C. F. & I. Co., 142 N. Y. 236, 37 N. E. 1, 25 L. R. A. 67. This fact has no bearing on the constitutional question involved here. The right to a jury trial guaranteed in the federal courts is that known to the law of England, not the jury trial as modified by local usage or statute. United States v. Wonson, 1 Gall. 5, 20, Fed. Cas. No. 16,750; Capital Traction Co. v. Hof, 174 U. S. 1, 8, 19 Sup. 223 U. S. 437, 32 Sup. Ct. 248, 56 L. Ed. 497. Ct. 580, 43 L. Ed. 873. See also United States v.

Rathbone, 2 Paine, 578, Fed. Cas. No. 16,121; Howe
Machine Co. v. Edwards, 15 Blatchf. 402, Fed. Cas.
No. 6,784; Sulzer v. Watson (C. C.) 39 Fed. 414;
United States v. Wells (D. C.) 203 Fed. 146, 149.

In Davis v. St. Louis & S. F. Ry. Co. (C. C.) 25
Fed. 786, case involving
a

a long account, a

In Meeker & Co. v. Lehigh Valley R. R., 236 U. S. 412, 430, 35 Sup. Ct. 328, 59 L. Ed. 644, Ann. Cas. 1916B, 691, it was held that the provision in section 16 of the Interstate Commerce Act (Comp. St. § 8584), making the findreferee was appointed to report, apparently to de-ings and order of the Commission prima facie termine the facts in accordance with the practice evidence of the facts therein stated in suits prevailing in Kansas where the court was sitting. brought to enforce reparation awards, does not infringe upon the right of trial by jury. See also Mills v. Lehigh Valley Railroad, 238

See "Trial by Jury and the Reform of Civil Procedure," by Prof. A. W. Scott, 31 Harvard Law Re

view, 669.

(40 Sup.Ct.)

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U. S. 473, 35 Sup. Ct. 888, 59 L. Ed. 1414;, the performance of specific judicial duties, as Chicago, etc., R. R. v. Jones, 149 Ill. 361, 382, they may arise in the progress of a cause. 37 N. E. 247, 24 L. R. A. 141, 41 Am. St. Rep. From the commencement of our government 278. In the Meeker Case this court relied es- it has been exercised by the federal courts, pecially upon Holmes v. Hunt, 122 Mass. 505, 23 Am. Rep. 381, and called attention to the when sitting in equity, by *appointing, either with or without the consent of the parties, fact that there the statute making the report of an auditor prima facie evidence at the trial special masters, auditors, examiners, and commissioners. To take and report testimony; before a jury was held to be a legitimate exercise of legislative power over rules of evi- to audit and state accounts; to make compudence and in no wise inconsistent with the tations; to determine, where the facts are constitutional right of trial by jury. The complicated and the evidence voluminous, reasons for holding an auditor's report admissible as evidence are, in one respect, stronger than for giving such effect to the report of an independent tribunal like the In

*312

what questions are actually in issue; to hear conflicting evidence and make finding thereon -these are among the purposes for which such aids to the judges have been appointed. Kimberly v. Arms, 129 U. S. 512, 523, 9 Sup. Ct. terstate Commerce *Commission. The audi- 355, 32 L. Ed. 764. Whether such aid shall tor is an officer of the court which appoints be sought is ordinarily within the discretion him. The proceedings before him are subject to its supervision, and the report may be used only if, and so far as, acceptable to the court.

That neither the hearing before the auditor, nor the introduction of his report in evidence, abridges in any way the right of trial by jury was the conclusion reached in 1902 in the district of Massachusetts in Primrose v. Fenno, 113 Fed. 375, and 119 Fed. 801, 56 C. C. A. 313, the first reported case in which an auditor was appointed with the powers here conferred. The practice there established has been followed in the Southern District of New York, Vermeule v. Reilly, 196 Fed. 226; and in the Eastern District of Tennessee, United States v. Wells, 203 Fed. 146.

Fifth. There being no constitutional obstacle to the appointment of an auditor in aid of jury trials, it remains to consider whether Congress has conferred upon District Courts power to make the order. There is here, unlike Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117, no legislation of Congress which directly or by implication forbids the court to provide for such preliminary hearing and report. But, on the other hand, there is no statute which expressly authorizes it. The question presented is, therefore, whether the court possesses the inherent power to supply itself with this instrument for the administration of justice when deemed by it essential.

of the trial judge; but this court has indicated that where accounts are complex and intricate, or the documents and other evidence voluminous, or where extensive computations are to be made, it is the better practice to refer the matter to a special master or commissioner than for the judge to undertake to perform the task himself. Heirs of P. F. Dubourg de St. Colombe v. United States, 7 Pet. 625, 8 L. Ed. 807; Chicago, Milwaukee & St. P. Ry. v. Tompkins, 176 U. S. 167, 180, 20 Sup. Ct. 336, 44 L. Ed. 417. Of the appointment made in Field v. Holland, 6 Cranch, 8, 21 (3 L. Ed. 136), Mr. Chief Justice Marshall said:

"It is a reference to 'auditors,' a term which designates agents or officers of the court, who examine and digest accounts for the decisions of the court. They do not decree, but prepare material on which a decree may be made."

And in Railroad Co. v. Swasey, 23 Wall.

405, 410 (23 L. Ed. 136), Mr. Chief Justice Waite said of the master's report:

"Its office is to present the case to the court in such a manner that intelligent action may be there had, and it is this action by the court, not the report, that finally determines the rights of the parties."

What the District Judge was seeking when he appointed the auditor in the case at bar was just such aid. He required it himself, because without the aid to be rendered through the preliminary hearing and report, the trial judge would be unable to perform his duty of defining to the jury the issues sub

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[9] Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties. Compare Stockbridge Iron Co. v. mitted for their determination and *of directCone Iron Works, 102 Mass. 80, 87-90. This ing their attention to the matters actually in power includes authority to appoint persons unconnected with the court to aid judges in

issue. United States v. Reading Railroad, 123 U. S. 113, 114, 8 Sup. Ct. 77, 31 L. Ed. 138. The hearing and report were also essential as Acts making findings in the tentative hearing shown above to enable the jury to perform before an auditor prima facie evidence were held not to infringe the right of trial by jury in Maine, their specific duty. Owing to the difference Howard v. Kimball, 65 Me. 308, 327; and in New in the character of the proceedings and of the Hampshire, Doyle v. Doyle, 56 N. H. 567; Perkins questions ordinarily involved, the occasion v. Scott, 57 N. H. 55. A different conclusion was for seeking such aid as is afforded to a judge

reached in Francis v. Baker, 11 R. I. 103, 23 Am.

Rep. 424, and Plimpton v. Town of Somerset, 33 by special masters, auditors, or examiners arises less frequently at law than in equity.

Vt. 283.

of a stenographer. Both rules embody substantially the practice which had theretofore prevailed generally in equity proceed. ings, and which in the Southern District of New York had been followed not only in equity, American Diamond Drill Co. v. Sullivan Machine Co. (C. C.) 32 Fed. 552; Id., 131 U. S. 428, 9 Sup. Ct. 794, 33 L. Ed. 217; Brickill v. Mayor, etc., of City of New York (C. C.) 55 Fed. 565; Hohorst v. HamburgAmerican Packet Co. (C. C.) 76 Fed. 472; but also in admiralty, The E. Luckenbach (D. C.) 19 Fed. 847; Rogers v. Brown (D. C.) 136 Fed. 813. The expense of printing the records and briefs in the trial court has been

A compulsory reference with power to deter-[ provides for taxing the fees of masters, and mine issues is impossible in the federal courts rule 50 (33 Sup. Ct. xxxii) for the expense because of the Seventh Amendment, United States v. Rathbone, 2 Paine, 578, Fed. Cas. No. 16,121; but no reason exists why a compulsory reference to an auditor to simplify and clarify the issues and to make tentative findings may not be made at law, when occasion arises, as freely as compulsory references to special masters are made in equity. Reference of complicated questions of fact to a person specially appointed to hear the evidence and make findings thereon has long been recognized as an appropriate proceeding in an action at law. Heckers v. Fowler, 2 Wall. 123, 17 L. Ed. 759. The inherent power of a federal court to invoke such aid is the same whether the court sits in equity or at law. We conclude, therefore, that the order, in so far as it appointed the auditor and prescribed his duties, was within the power of the court.

[10, 11] Sixth. The clause in the order which provides that "the expense of the auditor, including the expense of a stenographer, to be paid by either or both parties to this action, in accordance with the determination of the trial judge" requires special

*315

consideration. As Congress has made *no provision for paying from public funds either the fees of auditors or the expense of the stenographer, the power to make the appointment without consent of the parties is practically dependent upon the power to tax the expense as costs. May the compensation of auditor and stenographer be taxed as costs; and, if so, may the expense be imposed in the discretion of the trial court upon either party?

Federal trial courts have, sometimes by general rule, sometimes by decision upon the facts of a particular case, included in the taxable costs expenditures incident to the litigation which were ordered by the court because deemed essential to a proper consideration of the case by the court or the jury. Equity rule 68 (33 Sup. Ct. xxxviii)

In Massachusetts the expense of the auditor was prior to 1878 taxed in all cases as costs to be paid by the defeated party. See Acts of 1818, c. 142; Rev. Stat. (1836) c. 96, § 31; Gen. Stat. (1860) c. 121, 50; Act of March 16, 1867, c. 67; Act of June 6, 1873, c. 342. By Act of April 23, 1878, c. 173, the expense of the auditor in cases tried in the superior or in the Supreme Judicial Court was made payable by the county. See also Rev. Laws (1902) c. 165, 60; Act of June 5, 1911, c. 237; Acts of 1914, c. 576. In Maine the fees of the auditor were prior to 1897 taxed as costs in favor of the prevailing party. Laws (1821) c. 59, § 25; Acts of 1826, c. 347, § 1; Rev. Stat. (1883) c. 82, § 70. Since the Act of March 12, 1897, c. 224, the fees and necessary expenses of the auditors are paid by the county.

In New Hampshire the fees of the auditor are also taxable as costs in favor of the prevailing

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made by rule of court in several of the circuits taxable as costs against the defeated party, Hake v. Brown (C. C.) 44 Fed. 734. Compare Kelly v. Springfield Ry. Co. (C. C.) 83 Fed. 183; Tesla Electric Co. v. Scott (C. C.) 101 Fed. 524. As early as 1843 Mr. Justice Story, sitting at circuit in Whipple v. Cumberland Cotton Manufacturing Co., 3 Story, 84, Fed. Cas. No. 17,515, approved, in an action at law for damages, although not specially authorized by any rule, the order of a survey, as "necessary for the true understanding of the cause on both sides," and ordered the expense paid by them. In cases in which courts have refused to tax as costs copies of stenographer's minutes and other expenditures incident to the litigation, attention has been called to the fact that they were made for the benefit of the party, as distinguished from expenditures incurred under order of the court, to make possible or to facilitate its consideration of the case. Stallo v. Wagner, 245 Fed. 636, 158 C. C. A. 64; New Hampshire Land Co. v. Tilton (C. C.) 29 Fed. 764. But see Bridges v. Sheldon (C. C.) 7 Fed. 17, 42.

The allowance of costs in the federal courts rests, not upon express statutory enactment by Congress, but upon usage long continued and confirmed by implication from provisions in many statutes. Mr. Justice Woodbury in Hathaway v. Roach, 2 Woodb. & M. 63, Fed. Cas. No. 6,213; Mr. Justice Nelson in Costs in Civil Cases, 1 Blatchf. 652, Fed. Cas. No. 18,284; The Baltimore, 8 Wall. $77, 19 L. Ed. 463. In Hathaway v. Roach, 2 Woodb. & M. 67, Fed. Cas. No. 6,213, it is said to have been the usage of the federal courts

"to conform to the state laws as to costs, when no express provision has been made and is in force by any act of Congress in relation to any particular item, or when no general rule of court exists on this subject."

And in The Baltimore, 8 Wall. 390, 391

party; but the court may now in its discretion, (19 L. Ed. 463) this court stated that—

order them paid by the county. Act of June 23, 1823, c. 19, § 1; Act of July 20, 1876, c. 35, § 4; Pub. Stat. (1901) c. 227, § 7.

"The costs taxed in the Circuit and District Courts were the same as were allowed at that

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