judgment to carry interest from the date of its entry. The only question, so far as we can discover, is whether the decree in the Equity case should include Findings of Fact and Conclusions of Law and the judgment in the law case do the same, in accordance with the New Procedure Rule No. 52, 28 U.S.C.A. following section 723c. That rule is almost a copy of Equity Rule 70 1/2, 28 U.S.C.A. following section 723. The latter Rule has never been held, and for obvious reasons, to apply to exceptions to a Master's Report nor to the formal decree entered. Indeed the practice in the latter case would conflict with Equity Rule 71, 28 U.S.C.A. following section 723. If, however, the Rule is held to apply the very Rule provides that "the findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court". There is no need to apply Rule 52 to a review of the findings of a Referee when he has complied with the Rule. The State practice has not been uniform on the subject of incorporating Findings in the disposition made of the report of the Referee. They may in consequence be incorporated. If Rule 52 is held to apply to Referee cases then the findings of the Referee by the express terms of the Rule are incorporated.
With many of the propositions of the Brief submitted, we are in accord. The United States without its consent cannot be subjected to the payment of costs. Undoubtedly a Court of Equity may determine the payment of costs. Ordinarily they follow the decree entered but may not. We refuse, however, to impose them, or any part of them, upon the Bethlehem Company. Asking us to do so is to ask for a re-hearing. The Master's and Referee's fees are undoubtedly costs. With us costs are taxed by the Clerk. Fees, however, are fixed by the Court, not by the Clerk. It is accordingly the practice for the Court to fix them and the Clerk taxes them at the sum fixed. The Court in actions at law has no control over the costs. They follow the judgment which carries costs. The Pennsylvania Act fixes the fees of Referees on a per diem basis, 5 P.S.Pa. § 208. The parties however, with the consent of the Referee, have agreed that on the per diem basis the compensation of the Referee is the sum of $15,540, and it is so fixed. The Referee ruled that the action at law was not against the United States but a corporation. The Court agreed. To now contend otherwise is to turn the motion for judgment into a re-argument. The contract between the corporations plaintiff and defendant is governed by the law of contracts of the State. The liability to costs is determined by the law of the State. This Court has no lawful power to substitute its judgment of what the law should be for what the State law is. We cannot in out discretion charge that law.
The conclusions are:
1. The decree in the Equity case should be one of a simple dismissal of the Bill.
2. The judgment in the action at law may be a judgment in favor of the plaintiff for $5,272,075.10, with costs of suit and fixing the compensation of the Referee at $15,540 as agreed to by the parties.
3. A form of judgment in the action at law is submitted herewith as the final judgment entered.
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