The _Chief Justice_ asked what was the rule in patent cases.
The Prothonotary said that in all such cases a reasonable sum was allowed.
Mr. Sergeant _Hullock_ proceeded. There was another ground on which he thought the experiments ought not to be charged. Either there had been several experiments made before the new method was adopted, or there had not. If there had, no additional experiments were necessary on the late trials. If there had not, the plaintiffs had rashly made the risk, and ought not to recover now.
The _Chief Justice_.—You forgot, brother _Hullock_, that this was a patent.
Mr. Sergeant _Hullock_.—That, my lord, strengthens my argument, for in that case it must have been so well known, as not to need any additional experiments. The learned Sergeant was proceeding to contend that the division of the costs equally between the two insurance companies was not the most proper one; but the court thought that such an arrangement would best meet the justice of the case. There were two insurance companies in the case, in each of which two policies had been effected, and two actions commenced; and though all the actions were not tried, yet as the same evidence went to all, it was but just that each office should bear a moiety of the costs.
The arguments being closed on both sides, the _Chief Justice_ asked whether physicians were allowed for loss of time as witnesses?
The Prothonotary replied, that they were always allowed.
The Court then wished to be informed, whether there was a particular scale of allowance, for it was not to be supposed that such an eminent physician as Dr. _Baillie_ would be allowed according to the extent of his practice.
The prothonotary said certainly not. There was an average allowance, and by that the most eminent physician received only the same sum as the physician who had got his diploma but the day before.
The _Chief Justice_.—What sum would you allow?
The Prothonotary.—My lord, since the allowance has been raised to barristers, we have raised physicians to the same rank, and they are allowed the same—two guineas per day.
The _Chief Justice_.—But do barristers take the allowance?
The Prothonotary.—In some cases, my lord, it is allowed.
The _Chief Justice_ (after consulting for a short time with the other Judges) said we shall not say any thing more upon this, than that it must be referred back to the master to revise the costs, and that the experiments are not to be allowed: nor is allowance to be made for loss of time as such; but let it be understood that physicians are to be allowed as usual.