far from this rule as to deny costs to the successful party, and, in certain classes of cases, they will even compel him to pay costs to those against whom he obtains a decree.3 In some cases the costs may be apportioned. Under no circumstances, however, will a court dismiss the plaintiff's bill and award him costs against a defendant,5 although under special circumstances it might then allow him costs out of a fund in court. If a plaintiff begins or continues a suit after he has received formal notice of a full and unconditional offer of all that he is entitled to, he may be denied costs, not only of all the proceedings taken by him. after such an offer, but also of the whole suit.8 This principle applies to bills for an accounting; when, although on account of the uncertain state of the account the defendant may not be able to, and so does not, make a tender of the balance due from him, yet if he has shown a willingness to account, the court may relieve him from paying costs. If a plaintiff charge fraud which, though he establishes his case on other grounds, he fails to prove; or, in some cases, if he claims relief more extensive than that to which he is entitled; or if, on account of public policy or otherwise, he is allowed to obtain relief in a matter wherein he himself acted unlawfully or dishonorably; 12 or if he have been guilty of laches,13 which do not bar his claim entirely, he will be denied costs. A defendant will also be denied costs when successful under similar circumstances; 14 for instance, when the plaintiff's bill is clearly bad and he answers instead of demurring.15 The English rule seems to be that it is beneath the dig

10

3 Grattan v. Appleton, 3 Story, 755; Brooks v. Byam, 2 Story, 553.

Farwell v. Kerr, 28 Fed. R. 345; Lippincott v. Shaw Carriage Co., 34 Fed. R. 570.

5 Barns v. Omally, 4 McLean, 576; Hobbs v. McLean, 117 U. S. 567. But see Fechheimer v. Baum, 43 Fed. R. 719, 730, and infra, § 335.

6 Fechheimer v. Baum, 43 Fed. R. 719, 734, infra, § 335. But see Hobbs v. McLean, 117 U. S. 567.

7 Millington v. Fox, 3 M. & C. 338, 352; Loveridge v. Larned, 7 Fed. R. 294 ; Calkins v. Bertrand, 8 Fed. R. 755. But see Inhabitants of New Providence Township v. Halsey, 117 U. S. 336.

9 Parrot v. Treby, Prec. in Ch. 254; Bennett v. Attkins, 1 Y. & C. 247; Ashburnham v. Thompson, 13 Ves. 402. But see Daniell's Ch. Pr. (5th Am. ed.) 1396, 1397.

10 Wright v. Howard, 1 Sim. & S. 190; Scott v. Dunbar, 1 Molloy, 442. See Fisher v. Boody, 1 Curtis, 206, 223. 11 Baldwin v. Ely, 9 How. 580. 12 Debenham v. Ox, 1 Ves. Sen. 276; Davis v. Symonds, 1 Cox Eq. 402.

18 Anon., 2 Atk. 14; Lee v. Brown, 4 Ves. 362.

14 Attorney-General v. Brewers' Co., 1 P. Wms. 376; Bunker v. Stevens, 26 Fed. R. 245.

15 Brooks v. Byam, 2 Story, 553; Har

8 Millington v. Fox, 3 M. & C. 338, land v. Bankers' & M. Tel. Co., 82 Fed. R. 352.

305.

nity of a sovereign to demand costs, and that, therefore, when he is successful in a suit, his counsel will waive all claim for any.16 Instances when costs have not been given to a successful party, because the situation of his adversary appealed to the sympathy of the court, were when the decision of the case involved the decision of a difficult and doubtful question of law,17 especially in suits brought for the specific performance of a contract affecting the sale of land; 15 when the court enforced a contract made upon a very inadequate consideration; 19 and in other cases of peculiar hardship.20 A change of the law by a ruling of the Supreme Court subsequent to the filing of the bill has been held no ground for refusing the defendant costs.21 Costs are usually included in a decree for a perpetual injunction against the infringement of a trademark, although no demand that he cease using the trademark was made on the defendant before the suit was brought.22

The Revised Statutes provide that when in a Circuit Court a plaintiff in an action at law originally brought there, or a petitioner in equity other than the United States, recovers less than the sum or value of five hundred dollars, exclusive of costs, in a case which cannot be brought there unless the amount in dispute exclusive of costs exceeds said sum or value, he shall not be allowed costs, and the court may in its discretion award costs against him.23 This statute applies when by the allowance of a counterclaim the amount recovered by the plaintiff is reduced to less than five hundred dollars.24 The statute does not apply to a suit removed from a State court.25 If the amount recovered is less than two thousand, but more than five hundred dollars, the statute does not apply, although the jurisdictional amount is now the former sum.26 If there was, when the suit was brought, a reasonable expectation of the recovery of more than five hundred dollars, costs will not be awarded against the plaintiff.27

16 Emperor of Austria v. Day, 2 Giff. 628; s. c. 3 De G. F. & J. 217.

17 Grattan v. Appleton, 3 Story, 755; Rose v. Calland, 5 Ves. 186.

18 Rose v. Calland, 5 Ves. 186; White v. Foljambe, 11 Ves. 337; Willcox v. Bellaers, T. & R. 491.

19 Burrowes v. Lock, 10 Ves. 470. 20 Lillia v. Airey, 1 Ves. Jr. 277; Shales v. Barrington, 1 P. Wms. 481; Drybutter v. Bartholomew, 2 P. Wms. 127.

22 Sawyer v. Kellogg, 9 Fed. R. 601. 23 U. S. R. S. § 968.

24 Hamilton v. Baldwin, 41 Fed. R.429. 25 Field v. Schell, 4 Blatchf. 435; Ellis v. Jarvis, 3 Mason, 457; Kreager v. . Judd, 5 Fed. R. 27.

26 Eastman v. Sherry, 87 Fed. R. 844; Johnson v. Watkins, 40 Fed. R. 187.

27 Gibson v. Memphis, &c. R. Co., 31 Fed. R. 553. For the rule under the practice at common law in Tennessee, 21 Fargo v. South Eastern Ry. Co., 28 see Johnson v. Mississippi & T. R. Co., 31 Fed. R. 906.

Fed. R. 551.

In suits to adjust claims against the United States, costs cannot be allowed unless the government puts in issue the right of the plaintiff to recover; and then only in the discretion of the court.28 Costs in such a suit include only "what is actually incurred for witnesses and summoning the same, and fees paid to the clerk of the court." 29 No costs are allowed against the United States in a suit to recover a penalty or forfeiture accruing under any law providing for the internal revenue, when the suit was brought by the government on information received from any person other than a collector, deputy collector, or inspector of internal revenue.30 No costs are awarded for or against the United States in the Supreme Court or in the Circuit Courts of Appeals.31

When upon a reference the master reports in favor of the plaintiff for nominal damages, the award of costs is in the discretion of the court, and depends upon the peculiar circumstances of each case.32

The successful party to a suit may also be obliged to pay costs to an opponent who has not acted unconscientiously, in three classes of cases: when the successful party has acted unconscientiously in the suit or in the matters which gave rise to it; 33 when a defendant has been necessarily made a party to a suit in which he has no direct personal interest, for example, an heir-at-law, who is a passive defendant to a suit to prove a will; 34 and when a bill is filed to redeem a pledge or relieve an estate from the burden of a mortgage or other incumbrance. In cases where the finally successful party is obliged without his fault to pay costs to one of the others, if the suit was made necessary by the misconduct of one of the defendants, the latter is obliged to repay the amount of those costs to the first.36 Thus, the costs paid out of the fund to the plaintiff in a suit of interpleader are usually decreed to be repaid by the unsuccessful defendant.37 In suits founded upon

28 24 St. at L. ch. 359, p. 508, § 15. 29 24 St. at L. ch. 369, p. 508, § 15. 30 U. S. R. S. § 969.

31 Supreme Court Rule 24; Circuit Court of Appeals Rule 31.

32 Calkins v. Bertrand, 8 Fed. R. 755; Everest v. Buffalo Lubricating Oil Co., 31 Fed. R. 742; Hill v. Smith, 32 Fed. R. 753; Kirk v. DuBois, 46 Fed. R. 486. 38 Wright v. Howard, 1 Sim. &

190.

S.

34 Crew v. Joliff, Prec. in Ch. 93; Luxton v. Stephens, 3 P. Wms. 373.

85 Taner v. Ivie, 2 Ves. Sen. 466, 468. 86 Martinius v. Helmuth, 2 V. & B. 412, note. See Brodie v. St. Paul, 1 Ves. Jr. 326; Badeau v. Rogers, 2 Paige Ch. (N. Y.) 209.

37 Martinius v. Helmuth, 2 V. & B. 412, note: Badeau v. Rogers, 2 Paige Ch. (N. Y.) 209. But see Ferguson v. Dent, 46 Fed. R. 88; infra, § 334.

letters-patent for inventions, when the patentee has claimed in his specification that he was the original inventor of more than he did first invent, he cannot recover costs unless he has filed a proper disclaimer in the Patent Office before the commencement of the suit.38 When an action at law or suit in equity is dismissed in the court of first instance for want of jurisdiction over the person of the defendant or over the subject-matter, or for a lack of the requisite difference of citizenship, no costs are allowed.39 When a case removed from a State court is remanded for want of jurisdiction in the Circuit Court, the right to costs is secured by the bond filed with the petition for the removal.40 When a case was begun in a State court and afterwards removed, in the districts of Michigan costs accrued in the State court before the removal may be taxed. In the Second Circuit such costs are not allowed.42 No costs are usually granted in a case in the Circuit Court where the judges are divided.43 In an appellate court, when a judgment or decree is reversed for want of jurisdiction in the court below, costs are imposed upon the party who sought the jurisdiction of the court below, either by original process or by removal, whether he is respondent or appellant. When an appeal or writ of error is dismissed for want of jurisdiction, costs of the motion, including the clerk's fee for printing and supervising the record, may be taxed. When both parties appeal, and the decree is in all respects affirmed, usually no costs of the appeal are allowed.46

§ 328. Classification of Costs. Different principles regulate the amount of costs according as they are decreed to be paid by one party to another, or out of a fund in court. In the former

38 U. S. R. S. § 4922; Proctor v. Brill, 16 Fed. R. 791.

39 Burnham v. Rangeley, 2 W. & M. 417; Pentlarge v. Kirby, 20 Fed. R. 898. But see U. S. v. Treadwell, 15 Fed. R. 532; Cooper v. New Haven Steamboat Co., 18 Fed. R. 588.

40 See § 3 of Judiciary Act of 1875, as amended in 1887; 24 St. at L. ch. 373.

41 Wolf v. Insurance Co., 1 Flippin, 377; Cleaver v. Trader's Ins. Co., 40 Fed. R. 863. See Central Trust Co. v. Central Iowa Ry. Co., 38 Fed. R. 863.

42 Chadbourne v. German American Ins. Co., 31 Fed. R. 625; Clare v. National City Bank, 14 Blatchf. 445.

48 Veazie v. Williams, 3 Story, 611, 632. 44 Mansfield C. & L. M. Ry. Co. v. Swan, 111 U. S. 379; Continental Insurance Co. v. Rhoads, 119 U. S. 237; Peper v. Fordyce, 119 U. S. 469; Everhart v. Huntsville College, 120 U. S. 223; King Bridge Co. v. Otoe County, 120 U. S. 225; Peninsula Iron Co. v. Stone, 121 U. S. 631; Chapman v. Barney, 129 U. S. 677.

45 Bradstreet Company v. Higgins, 114 U. S. 262; Circuit Court of Appeals Rule 23.

46 The William Cox, 9 Fed. R. 672. § 328. Trustees v. Greenough, 105 U. S. 527; Central R. R. v. Pettus, 113 U. S. 116.

case costs are said to be taxed as between party and party, in the latter as between solicitor and client.2

-

§ 329. Costs as between Party and Party. Costs as between party and party are regulated by statute. They are the amount of the "bill of fees of the clerk, marshal, and attorney, and the amount paid printers and witnesses, and lawful fees for exemplifications and copies of papers necessarily obtained for use on trials."1

§ 330. Attorney's Fees. The Revised Statutes fix the following sums to be taxed as attorney's fees in a bill of costs between party and party: "On a trial before a jury, in civil or criminal causes, or before referees, or on a final hearing in equity or admiralty, a docket fee of twenty dollars, provided that in cases of admiralty and maritime jurisdiction, where the libellant recovers less than fifty dollars, the docket fee of his proctor shall be but ten dollars. In cases at law, when judgment is rendered without a jury, ten dollars. In cases at law, when the cause is discontinued, five dollars. For scire facias and other proceedings on recognizances, five dollars. For each deposition taken and admitted in evidence in a cause, two dollars and fifty cents. For services rendered in cases removed from a District to a Circuit Court by writ of error or appeal, five dollars." 1

It has been held that a docket fee can be taxed for each hearing before the court after bill, answer, and replication have been filed, but not for a hearing upon a demurrer which is overruled, when the defendant has leave to answer and an answer is filed.3 When a demurrer is sustained, a docket fee is allowed. When a motion to remand is granted, a docket fee is allowed. To constitute "a final hearing in equity or admiralty," there must be a hearing of the cause upon its merits. No docket fee is allowed for a hearing upon an interlocutory application. When a bill is

2 Trustees v. Greenough, 105 U. S. 527; Central R. R. v. Pettus, 113 U. S. 116.

§ 329. 1 U. S. R. S. § 983. But see Spaulding v. Tucker, 2 Sawyer, 50.

§ 330. 1 U. S. R. S. § 824. The same and the three following sections also regulate the fees of district attorneys. Besides the cases elsewhere cited, see Bashaw v. U. S., 47 Fed. R. 40.

3 McLean v. Clark, 23 Fed. R. 861. Price v. Coleman, 22 Fed. R. 694. Josslyn v. Phillips, 29 Fed. R. 481.

6 Wooster v. Handy, 23 Fed. R. 49; Goodyear D. V. Co. v. Osgood, 2 B. & A. Pat. Cas. 529; Coy v. Perkins, 13 Fed. R. 111; Yale Lock Manuf. Co. v. Colvin, 14 Fed. R. 269. Contra, Goodyear v. Sawyer, 17 Fed. R. 2.

7 Doughty v. West, B. & C. Manuf. Co.,

2 American Diamond Rock Boring Co. 8 Blatchf. 107; Central Trust Co. v. Wav. Sheldon, 28 Fed. R. 217.

bash, St. L. & P. R. Co., 32 Fed. R. 684.