and Daily, the two plaintiffs who own a twelfth interest of the claims, and the lessees, are citizens of this state; the defendants also are citzens of this state; and the question is whether the action can be maintained here by these plaintiffs against these defendants. On that the rule is that all of the plaintiffs who have any interest in the property must have a different citizenship from the defendants. Assuming that Jones and Daily, as lessees, have no substantial interest in the property, or, at least, that they need not be joined in this action, West and Worthington remain, having a twelfth interest each. They have no standing in this court, and cannot prosecute an action here against other citizens of the same state.

The averment in the complaint that this is an action that involves the "construction and consideration of the laws of the United States upon the subject of mines and mining, and the validity and title to mining claims occurring and arising thereunder," is not sufficient to show a cause of action arising under the laws of the United States. The question which arises under those laws, and the difference of opinion between parties as to the meaning and effect of those laws, is to be stated in the complaint to show such cause of action.

The authority which we follow on that subject is Gold Washing & Water Co. v. Keyes, 96 U. S. 199. In that case it was decided that there must be a controversy between parties as to the meaning and effect of a law of the United States. It is not sufficient that they base their right to recover upon the acts of congress relating to mining claims, but there must be some dispute between the parties as to the construction of those laws.

The action is one which cannot be maintained in this court, and will be dismissed, pursuant to the motion of the defendants.

See Kerling v. Cotzhausen, 16 FED. REP. 705; State of Illinois v. Chicago, B. & Q. R. Co. Id. 706; Adams Exp. Co. v. Denver & R. G. Ry. Co. Id. 712; Myers v. Union Pac. Ry. Co. Id. 292; Cruikshank v. Fourth Nat. Bank, Id. 888; Bates v. New Orleans, B. R. & V. R. Co. Id. 294; Ellis v. Norton, Id. 4. [ED.

GOODYEAR and others v. SAWYER. (No. 126.,

(Circuit Court, W. D. Tennessee. June 29, 1883.)

1. COSTS-EQUITY PRACTICE-BILL DISMISSED BY PLAINTIFF--DOCKET FEEWHEN TAXABLE-REV. ST. §§ 823, 824, AND 983, CONSTRUED.

When a bill in equity is, after answer filed, dismissed by the plaintiff, on his own application, either generally or "without prejudice," the granting of such an order is a "final hearing: "in the sense of Rev. St. §§ 823 and 824, and the solicitor's docket fee of $20 is then taxable as part of the costs of the case, "recoverable by law in favor of the prevailing party," in the sense of Rev. St. 983. This results from the general law of costs in courts of equity which is adopted by this act of congress, so far as relates to the principles governing the court in the taxation of costs, as between party and party.

2. SAME SUBJECT-DISMISSAL AFTER DECREE FOR ACCOUNT AND COSTS.

Where there has been a decree for an account and costs against the defendant, but subsequently the plaintiff dismisses the bill, the docket fee is taxable in favor of the defendant, notwithstanding the former decree.

In Equity. Motion to retax costs.

This is a motion to retax the costs on execution in six cases of the plaintiffs against the several defendants, the objection in all being the charge of $20 for a docket fee to defendant's solicitor. They were bills in equity for an account of profits, injunction, etc., for the infringement of a patent. The objection urged on this motion was that there was no "final hearing," as required by the statute, to entitle the solicitor to the fee. The cases were not all disposed of alike. This case, No. 126, had been set for hearing according to the practice of the court, and was, with a number of others not involved in this motion, by the court, on application of plaintiffs' solicitor, "dismissed without prejudice, at the cost of complainant, for which costs to be herein taxed let execution issue." This was done on the regular call of the docket. In No. 146 there was a decree at the hearing on March 30, 1872, for an injunction and an account, and against the defendant for costs; but on December 30, 1872, on the plaintiffs' application, the case was, among others, dismissed by the court, by an order which recites that they "had been dismissed at the October, 1872, rules, the plaintiffs assuming all costs not previously decreed against the defendants, and that the clerk, having omitted to enter the order at the rules, it is now made nunc pro tunc, and is in all things confirmed." No. 145 was dismissed by the above order of December 30, 1872, but there was never in fact any other hearing on the merits, nor any account ordered, nor any decree for costs against the defendant in the case. No. 132 is said by counsel for the plaintiff to have been dismissed in the clerk's office; but the only entry of any dismissal is a docket entry, thus: "August 5, 1873. Costs paid;" and No. 158, said to have been dismissed in the clerk's office, is like the lastmentioned case, with no entry except on the docket, thus: "July 6, 1875. Clerk's and commissioner's costs paid." No. 181 is said, like the last two cases, to have been dismissed in the clerk's office; but there is not even a docket entry or anything to show the dismissal. There were answers filed in all the cases, replications in two of them, but no replications in the others. They were all set on the hearing docket, and repeatedly called and continued until disposed of as above indicated. Executions issued for costs, and this motion to retax and strike out the docket fees for the solicitor was made in all the cases.

D. M. Scales, for the motion.

George Gillham, contra.

HAMMOND, J. Until the practice of this court conforms more closely to the equity rules, and the analogies to which equity rule 90 directs. us for our government, and is less influenced by the more modern

system erected by legislation for the state courts of equity, to be found in our Tennessee Code, there must be a good deal of forbearance for irregularities like those found in the conduct of these cases. There can be no doubt that a too close adherence to the technicalities of our equity practice, when they are relied on by a kind of ex post facto application of them, as in this case, to defeat some unforeseen result, would frequently work injustice because of the fact that there has been, under the influence mentioned, so little regard for them in the progress of these particular cases, and generally by the bar in all The contention here that there can be taxed no solicitor's fee because there has been no replication filed in some of the cases, does not admit of much consideration at the hands of the court when the default is that of the party making the objection. The truth is our state Code has abolished replications in equity, and until recently, when the necessity for them in our federal practice has been emphasized, there has been a general neglect to file them, as by the plaintiffs in these cases. It does not lie with them, therefore, to say that without a replication there can be no "final hearing," and consequently no taxed docket fee.

cases.

There are other irregularities of practice relied on to defeat the docket fees in these cases that can be accounted for only by this disregard of our own, and the mistaken application of the state practice. For example, these cases have never, in fact, been set for hearing at all. Our state practice requires the clerk, as soon as answer is filed, to set all cases for hearing on the hearing docket. It has always been so done by the clerk of this court; and it may be doubted if any equity case in the court has ever been properly set for hearing according to the practice that should govern us. 2 Daniell, Ch. Pr. (5th Ed.) 964-971. The cases go to the trial docket, under the practice grown up in the clerk's office, even before answer filed, and are called term after term, and whatever is to be done is accomplished without the least regard to the technical practice.

Again, our state practice, by statutory regulation, permits a plaintiff until final decree to dismiss his bill at will, and before the clerk. Not so here. The right of the plaintiff to dismiss is not an unqualified one, and it can never be properly done in the clerk's office, except, perhaps, by force of equity rules 2 and 5 in the special case provided for in equity rule 66; and it is only, perhaps, by the court, in term-time, that any dismissal can be made, it not being one of those interlocutory steps authorized to be done in vacation or at ruledays for the preparation of a cause, but essentially a final disposition of it.. Equity Rules, Nos. 1-6; 1 Daniell, Ch. Pr. 790-812; Stevens v. The Railroads, 4 FED. REP. 97.

Yet the state practice was attempted to be followed in these cases, and we have in one of them the anomaly of an attempted dismissal at.rules before the clerk, even after an account had been ordered. With this constant tendency to mix state with federal practice, which

prevails in other states as well as this, and which, no doubt, influences legislators, as well as the bar and bench, it is misleading to overlook the tendency in construing statutes or adjudicating matters of practice like this now before us. I shall, therefore, treat these cases as if that were done which the parties intended to be done, namely, as having been dismissed upon the application of the plaintiffs. If proper orders have not been entered by the court to effectuate that result, it may now be done. The case of dismissal after a decree for an account is somewhat peculiar; but there is no doubt that the plaintiff may, either by consent, or without it if the defendant has no special interest to protect, procure an order to dismiss after a decree ordering an account. 1 Daniell, Ch. Pr. 793, 810, 811.

But the mistake the plaintiff makes here is to claim that because on the hearing he procured a decree for an account and for costs he is the prevailing party, and no docket fee can be taxed. That was an interlocutory decree in the sense of the practice in matters of costs, and, whatever may be its effect as to other costs, had nothing to do with the docket fee, which is to be decreed only on a “final hearing." I think, moreover, if the plaintiff dismisses after a decree for account and inquiries, the order of dismissal necessarily revokes the former decree for account and costs, and the defendant is entitled to his full costs, as when the bill is dismissed on application of the plaintiff in other cases; but it is not necessary to decide that in this case, it being clear that the judgment given for costs against the defendant by the decree for the account did not apply to the docket fee. That fee is left to the "final hearing" for allowance and taxation.

We have, then, the simple question presented whether the defendant is entitled to recover a docket fee for his solicitor, to be taxed when the plaintiff takes an order to dismiss his bill in the ordinary way, or "without prejudice." It is a question between party and party, and one arising under the law of costs as applicable to a court of equity, and not one between the attorney and his client, or the attorney and the losing party. Like the fees of the clerk or marshal, those of an attorney or solicitor are payable to him by the party for whom the services are rendered, (his client, in the case of an attorney,) but are taxable, under certain circumstances, as costs against the losing party in favor of the prevailing party at law, and as the court may direct in equity. Rev. St. § 823; Caldwell v. Jackson, 7 Cranch, 276; Anon. 2 Gall. 101; In re Stover, 1 Curt. 201; Lessee v. Arbuncle, Pet. C. C. 233; In re U. S. v. Cigars, 2 FED. REP. 494.

Of course, not all the charges of the attorney against his client were taxable as costs, but certain special items were, under the general law. In some states, notably Tennessee, this allowance of costs to attorneys never prevailed, mostly for the reason that under the practice the services usually performed by the attorney, for which the charges were taxable, were relegated to the clerk or sheriff. But in other states, as in New York, it was customary to tax attorney's

and solicitor's fees somewhat in the manner which has always prevailed in England. There certain items were taxable as attorney's fees, quite as a matter of course, and others were or were not taxable according to the peculiarities of the case; the whole subject being largely regulated by statute, or the rules and practice of the court. The rule at law was to tax them in favor of the prevailing party as a matter of right; but in equity, while this was the general rule, the court, in its discretion, governed by well-settled principles of judgment, may refuse costs, tax them against the prevailing party, divide them, enlarge the items of taxation, or otherwise regulate the allowance as it may deem just. Trustees v. Greenough, 105 U. S. 535; Lottery Co. v. Clark, 16 FED. REP. 20; U. S. v. Treadwell, 15 FED. REP. 532; Wiegand v. Copeland, 14 FED. REP. 118. And it is important to remember that, both at law and in equity, there were interlocutory costs and final costs. Those that were interlocutory were such as were allowed, taxable, and payable during the progress of the cause from time to time, as different stages were reached; and those that were final were such as were not allowable, taxable, or payable until the case had been finally determined. But in all cases the items were well ascertained, and usually were the subject of specific regulations fixing small sums for particular services of the clerk, attorney, or other officer of the court. Those that were final were not necessarily for services performed in and about the ceremony of trial or "final hearing," but were for services performed from the very commencement, all along through the case, and included all costs not strictly taxable as interlocutory which were comparatively less, and were limited to those that strictly belonged to the interlocutory proceeding itself.

It is not necessary to go into any more particular explanation of this distinction between interlocutory and final costs, nor those often obscure distinctions pertinent to the general subject, but not kept up under our new system, which grow out of regulations for taxing costs as between party and party simply, or between party and party as if between solicitor and client, or the summary taxation statutes designed to control the relation and the fees chargeable between the solicitor and the client, but having no necessary connection between the parties to the suit. .

But the practice on the subject of costs as it existed when our judicial system was organized cannot be overlooked in construing our legislation affecting the practice any more than we can ignore it in other matters of more importance, particularly since the equity rules specially refer us for analogies to the old practice in all its departments. 2 Daniell, Ch. Pr. (5th Ed.) 1376, 1378, note 1, 1379, 1395, note 6, 1398, note 4, 1410, note 4, 1434-1452; 2 Mad. Ch. 413-436; 1 Newl. Ch. 393-427; 2 Newl. Ch. 390; Beames, Eq. Costs, (20 Law Library,) 4, 85, 159, 160, 184, 214-230, 256; 2 Bac. Abr. it. "Costs," (Bouv. Ed.) 183; 2 Tidd, Pr. (3d Amer. Ed.) 945, 976;