Ingham v. Pierce

Jackson, J., (orally.) The district judge, in deciding the present point in Tuck v. Olds, 29 Fed. Rep. 883, followed the course of practice indicated by Judge Treat in Strauss v. Meyer, 22 Fed. Rep. 467. In the latter case the language employed by the judge ivas somewhat wider than the decision. We do not think it is necessary to criticise that case, however, for it is made to appear to us that throughout this circuit, at least, and a.s it would seem in the others generally, the practice has been, and is, to allow such costs in like circumstances. Rev. St. § 824. And among the reported cases, see Jerman v. Stewart, 12 Fed. Rep. 271; Stimpson v. Brooks, 3 Blatchf. 456; Factory v. Corning, 7 Blatchf. 16; Wooster v. Handy, 23 Blatchf. 112, 23 Fed. Rep. 49. Without examining the question on its original merits, we arc satisfied that the practical interpretation of the statute in the other direction has been generally in the courts of this circuit so long established, and for the sake of uniformity, as well, we should overrule the decision in Tuck v. Olds in this particular, and allow this item to he taxed. Ordered accordingly. Severens, District Judge, desires that I should express his concurrence in this opinion.