Perry Manuf'g Co. v. Brown

intimated an opinion in favor of several costs, but was willing to hear evidence as to the practice in the courts of the state. The case was accordingly postponed for that purpose.

SPRAGUE, District Judge, at a subsequent day, gave the following opinion: The statute seems to me to be peremptory. It says “any person,” while the statute regulating costs between principals, uses the term “party.” In the latter case, it becomes a ques*299tion, whether or not certain persons, joined as defendants, are or are not one part}’. This statute takes no cognizance of anything but persons and corporations. A partnership is not a person. It is contended that the statute, being only a rule in this court, is directory, and addressed to our discretion. Still, we must construe it according to its terms, and these seem to me distinct The notice given i by the plaintiffs, in their writ, is sufficient to confine their attachment to the joint debt; yet this does not excuse the trustees from appearing, according to the exigency of the writ, and submitting themselves severally to examination, under oath, as to the joint debt. One may ’know what another does not The plaintiffs have a right to the answer of each, as to the joint debt In this case, the plaintiffs have several answers, and agree to receive the answer of any one of the firm; but this does not excuse the others from attendance. They have no leave to go oiit of court All are liable to be charged, on the answer of one; and if charged, each is liable, ultimately, to a judgment upon scire facias against his private property and his body. I think each trustee must remain in court until he is discharged, or a discontinuance is entered against him. If so, he should have his costs for attendance. He also has a right to put in a separate answer, if he pleases, notwithstanding the notice.

The evidence, as in the practice in the state courts, has been before me, and I must consider it proved that the practice in Suffolk, Middlesex, and probably all the other counties, is to allow but one bill of costs in a case like the present This is, however, a custom of the clerks and the gentlemen of the bar, arising perhaps from courtesy or agreement. It has never been officially recognized, nor has the statute ever been solemnly passed upon, by the supreme court. It appears that Chief Justice Williams decided, in conformity with the practice, in the court of common pleas; but the case was not reported, and that learned judge is not able to refer us to the name or date of the ease. There may have been circumstances in the case, not now recollected, which would not make it conform altogether to the present. Moreover, so long as this decision, as well as the practice, is liable to be revised and perhaps reversed by the higher tribunal, I feel bound to follow my own judgment. Whereas, if the existing practice had been solemnly recognized and established by the highest tribunal in the state, I should prefer to follow it, for the sake of uniformity of practice, although not legally binding in this court.

As one of the trustees did not sign the special answer, being, as appears, out of the commonwealth, his costs will be disallowed. The other trustees are adjudged several costs, in each case, for travel and attendance, but not for counsel fees.