hearing in any proper use of that term. The great controversy has been whether such a dismissal, where there is no reservation of a right to sue again by taking the order "without prejudice," is a bar to a second suit. Under the old law it probably was not, but this is not certain; and by a comparatively recent order of court (promulgated A. D. 1852, since our equity rules) it is declared that whenever a party voluntarily dismisses his bill it shall have, without an order to the contrary, all the force and effect of a determination on the merits. This settled the controversy on the subject in a way that is wise and just, whether binding on us or not. Stevens v. The Railroads, supra. I refer to this to show that, in the state of the law on this point, it is by no means certain that congress, when it used the words "final hearing," did not intend to provide as much for cases dismissed like these as for cases dismissed in invito at the hearing.

Until this act of 1853 our own legislation was quite barren on the subject of costs. It is not necessary to go into it at length for that reason. Its general effect is stated in the cases of The Baltimore, 8 Wall. 377, 391; Costs in Civil Cases, 1 Blatchf. 652; District Attorney's Fees, Id. 647; The Liverpool Packet, 2 Spr. 37; Hathaway v. Roach, 2 Wood. & M. 63; Jerman v. Stewart, 12 FED. REP. 271, and other cases there cited.

The general result was that, except during a short time of temporary statutes making partial regulations, and some statutes applying to special cases, the federal courts were left to follow the state practice in cases at law, and the general equity practice in cases in that court until this act of 1853 was passed. One of these temporary statutes is, however, of great value in support of the views here expressed. Mr. Justice NELSON says that long after it expired it continued, without objection, to govern the taxation of costs, until the act of 1853 was passed. It was, no doubt, the model used in constructing the act of 1853. Its first sections were confined to regulating costs in admiralty cases. The "counselor or attorney" was allowed "the stated fee for drawing and exhibiting libel, etc., in each cause three dollars; drawing interrogatories three dollars; and all other services in any one cause three dollars."

It then proceeded to enact:

"Sec. 4. That there be allowed and taxed in the supreme, circuit, and district courts of the United States, in favor of the parties obtaining judgments therein, such compensation for their travel and attendance and for attorney's and counselor's fees, except in the district courts of admiralty and maritime jurisdiction, as are allowed in the supreme or superior courts of the respective states." Act 1793, c. 20, § 4, (1 St. at Large, 333;) Act 1796, c. 11, (Id. 451.)

The act of 1853 was intended, in my judgment, to express precisely what this section of the act of 1793 enacted as to attorney's and counselor's fees, but to fix the amounts in all cases of law, equity, and admiralty, to confine its operation to final costs, and exclude any

allowance for attorney's fees on interlocutory judgments; and left the principles of taxation to be governed by the law of costs as understood in courts of law, equity, and admiralty, respectively. Act 1853, c. 80, (10 St. 161.)

It must be conceded that the act is, in respect of the fees for attorneys, somewhat obscure, and the decisions have not been uniform. In Peterson's Ex'rs v. Ball, 1 Cranch, C. C. 571, (A. D. 1809,) when, however, the act of 1796, above referred to, had expired, it was held that where a bill was dismissed after answer filed, a lawyer's fee should be taxed. The court cites a Virginia statute, the effect of which I cannot ascertain. In Dedekam v. Vose, 3 Blatchf. 77, (S. C. Id. 153,) it was held that the attorney's fee could not be allowed upon interlocutory or collateral proceedings, and only upon an actual contestation of the case upon the merits, and that it could not be taxed twice in the same case,-first on final decree against the principal, and afterwards on another decree against the sureties. Nor can it be taxed more than once when a case has been twice heard, as before and after appeal. Troy Factory v. Corning, 7 Blatchf. 16.

In Hayford v. Griffiths, 3 Blatchf. 79, an appeal in admiralty was dismissed before the hearing, but on motion of the adverse party, and it was held the docket fee was taxable "on a final disposition of a cause on the calendar," which is precisely the ruling I make in these cases. There was no "hearing" in any sense in which these cases were not heard; certainly not any "final hearing" except in the same sense these cases were finally heard.

In Goodyear v. Osgood, 13 0. G. 325, it was held that "wherever a final decree is entered by the court in an equity cause, after replication filed, for the purposes of taxation of the docket fee this is to be considered as the 'final hearing' referred to in the Revised Statutes, § 824." The cases were dismissed on motion of the complainants after an interlocutory decree in another case settling the rights of the parties. As I understand the case, it supports the ruling made here, since the replications in these cases are, for reasons already stated, considered as filed; and the disposition made of that ruling of Judge SHEPLEY'S by the adverse case of Coy v. Perkins, 13 FED. REP. 111, is not quite satisfactory. It certainly cannot be material what motive influenced the plaintiff to dismiss,-whether because of an interlocutory decree in another case, or for other reasons. If he dismissed voluntarily, as he certainly did in the two cases mentioned in the report of the facts, which were not included in the stipulation. as to the case against Davis in which the interlocutory decree was rendered, there was no "final hearing" as those words are interpreted in Coy v. Perkins, supra.

The construction placed on the opinion in Goodyear v. Osgood, supra, by Coy v. Perkins, supra, seems to be that if the plaintiff dismisses because he concludes for himself he cannot succeed, the docket fee is not taxable; but if the court has convinced him by an interlocutory

decree in another case-to abide which he is not bound by any stipu lation that he cannot succeed, the docket fee is taxable. But Judge SHEPLEY does not, I think, place his judgment on that ground. In addition to what has been already quoted he says: "In the taxation of costs final hearing is to be considered as the submission of a cause in equity for the determination of the court, so that the case may be finally disposed of upon bill and answer, or bill, answer, and replication, or upon pleadings and proofs, or otherwise after the case is at issue." He evidently regards any dismissal on the plaintiff's application after issue as a "final hearing." It illustrates the confusion in which we are involved when we undertake to interpret "final hearing" by the factitious circumstances attending the disposition of the particular case, and when we must inquire into the motives with which a plaintiff is actuated when he makes his motion to dismiss his own case.

The opinion by Mr. Justice CLIFFORD mentioned in the report of Goodyear v. Osgood, supra, and in Coy v. Perkins, supra, was oral, and has never been, the clerk at Boston informs me, reported. We cannot say on what reasoning he ruled, nor precisely the state of the case. It only appears that the bill was dismissed "by agreement of parties, with costs," and he held the docket fee not taxable.

In The Bay City, 3 FED. REP. 47, the fee was held taxable on a dismissal in admiralty after proof commenced, but without any judgment by the court. There the accidental circumstance that proof had been heard constituted "a final hearing," but the court cited Hayford v. Griffiths, supra, somewhat approvingly. In Strafer v. Carr, 6 FED. REP. 466, and in Huntress v. Epsom, 15 FED. REP. 732, it was held that when there was more than one "trial before a jury" only one docket fee is taxable, because, as was said by Judge SWING, until there is a verdict and judgment the case is not finally disposed of, and it is only on such a disposition that the right to tax this item of costs accrues. In other words, interlocutory costs for the attorney's docket fee are not allowed; yet, on the strict letter of the statute, there was "a trial before the jury," even where there was no verdict; but it was held upon the whole statute that one fee only is to be taxed, and this on the final disposition of the case. The learned judge says the fee is not given "in proportion to the labor performed," and it seems to be introducing a very uncertain element of construction into the statute to cast about and see what was done in each case, and the character of the performance, in order to determine. whether there was a final hearing or not. It would impose on the taxing officer the necessity of taking proof aliunde the record to see how much of a hearing there was, what counsel did, and what the court did, and such other matters of fact as would enable him to determine whether there was a "final hearing;" and in the end, as the adjudicated cases show, there would be great disagreement as to what constituted a "final hearing," and the effect of varying circumstances on the question.

But in Schmieder v. Barney, 7 FED. REP. 451, per contra, it was held that where there was in the same case more than one "trial before a jury" a docket fee was taxable for each trial. In Osborn v. Osborn, 5 FED. REP. 389, there was no question of costs, but the words "final hearing," as used in the removal acts, were construed not to include an equity case where the evidence was heard and case submitted on questions of fact to a jury, but the jury disagreed. Yet in some of the cases on this statute as to costs this would be held conclusive evidence that there was a "final hearing," although the plaintiff voluntarily dismissed before the court could decree against him. In The Alert, 15 FED. REP. 620, on the same construction which I have placed on Hayford v. Griffiths, supra, it was held in a proceeding in rem, where the vessel was arrested and the case entered on the docket, but subsequently dismissed on application of the libelant on payment of costs, that this was a "final hearing." It was there said that the ground of the decision is that "granting an order which disposed of the cause was a final hearing," and that whenever an order of the court is necessary to dispose of the case, the hearing thereon is deemed to be a "final hearing." This seems to me to be the only just construction of the statute, and relieves us of that uncertainty before pointed out which arises when we depart from it.

The cases of Coy v. Perkins, supra, and Yale Lock Co. v. Colvin, 14 FED. REP. 269, are directly opposed to these views, and hold that where the plaintiff voluntarily dismisses his bill this docket fee is not taxable; but I am constrained, for the reasons given, to respectfully dissent from that ruling, and adopt that made in the other cases which have been cited holding the fee taxable.

This conflicting and indecisive attitude of the adjudged cases, and the fact that the question has often troubled the taxing officers of this court, induced me to take the first occasion when it has been presented here for judicial decision to give the subject a careful investigation, and this must be my apology for the undue length of this opinion.

Nothing less than a conviction, founded on thorough consideration, would justify my judicial judgment when it dissents from any of my brethren who have adjudicated the question.

Overrule the motion.

GAINES V. CITY OF NEW ORLEANS.1

(Circuit Court, E. D. Louisiana. May 3, 1883.)

1. EQUITY JURISDICTION.

A bill for a discovery lies, even when the action to be supported sounds in

tort.

2. SAME-ACCOUNTING-RENTS AND PROFITS OF REAL ESTATE.

In a suit for an accounting as to the rents and profits of real property for a period of 45 years, which must be taken according to the laws of Louisiana, and wherein the defendant must be charged with the rents and profits which have been, or ought to have been, annually received, and credited with the yearly expenditures for reclamations, improvements, and taxes; and when such an account has reference to hundreds of lots of ground,-it is of a most complex and involved character, which could not be dealt with upon a trial at law at nisi prius, and the complexity of the account is, therefore, a ground of equity jurisprudence.

3. SAME.

In a case where the complainant has recovered judgment against several hundred actual tenants for rents and profits for varying portions of a long period, and those tenants are insolvent, and the defendant is the warrantor of all those tenants, and whatever they owe the complainant the defendant owes to them; and when the defendant is not only a warrantor, but a warrantor in bad faith, who has enriched herself by purchasing in bad faith the complainant's property and selling it at a large profit,-the complainant, having no remedy at law upon this warranty for want of privity, has a right of action in equity.

Riddle v. Mandeville, 5 Cranch, 322.

4. SAME.

Equity will not allow a party, ultimately liable, to keep, for his own advantage, an intermediate and insolvent party in possession, who is, in return, responsible to the lawful owner, and thereby enrich himself out of the property of that owner thus dispossessed, and escape liability to him for want of a mode of action.

5. RENTS AND PROFITS.

According to all the authorities, both under the common law and the law of Louisiana, a suit for rents and profits could not have been brought until the complainant had recovered possession.

Gaines v. New Orleans, 15 Wall. 633.

6. EJECTMENT-TRUST.

In an ejectment bill against a party holding by an adverse title, there could be no trust raised up as to the price received by him in case of sale. 7. POSSESSOR IN BAD FAITH.

The possessor in bad faith is bound to surrender the thing immediately; and the seller and warrantor, who took and conveyed in bad faith, is bound forthwith to restore the price to his vendee, and to acquit, . e., discharge, for him his liability to the owner for fruits, without suit or condemnation.

8. SAME.

He who, with a motive to deprive another of that which he knows is justly that other's, employs the process and machinery of the courts, is under obligation to satisfy all damages which that other thereby suffers. The damages springing from the legitimate exercise of legal rights, even when there is an absence of malice, and there is good faith, must, according to the settled law of Louisiana, at least place the injured party in the situation in which he would have been if the disturbance had not taken place.

9. WARRANTY AND WARRANTOR.

The warrantor is, by the settled jurisprudence of Louisiana, the real defendant. The judgment is binding upon the warrantor if he has been called in warranty, or he is apprised of suit having been brought.

1 Reported by Joseph P. Hornor, Esq, of the New Orleans bar.