2 Jacob's Fisher's Dig. tit. "Costs"; Weeks, Attys. 532; 20 Amer. Law Reg. (N. S.) 263.

The fallacy of the argument made here against taxing the docket fee for the solicitor consists in assuming that it is a kind of honorarium for the work gone through with in the ceremony of a trial at the "final hearing," and there is an unnecessary conflict of suggestion as to what amount of ceremony must be had to entitle the solicitor to this fee. It is treated as a sum allowed for a specific thing done, like, for example, the dollar allowed the clerk for issuing a writ. It is not such an allowance at all. The system of allowing small sums for specific work done is kept up as to the clerk, marshal, and commissioners, but that system as to the attorneys is abrogated, and they are allowed a lump sum for all their fees in a case, except, alone, the deposition fee, which, again, is a lump sum for each deposition, irrespective of the work done on it. It is called a "docket" fee, and the use of that word indicates that it is not allowed for the work of going through a "final hearing," but for all the service in a case. Too much stress has been put upon the use of the words "final hearing," as a discrimination in the character of the cases in which this docket fee is taxable and those in which it is not; and there has been a misleading adherence to a supposed analogy of construction found in the allowances prescribed for "cases at law" by the same statute.

Again, a too-isolated attention is paid to this section 824 of the Revised Statutes, in considering this docket fee, and too little attention to other parts of the same statute found at sections 823 and 983 of the Revision. Reading the whole statute together, as originally passed, and as it is found in the Revision, in the light of previous legislation and the practice under that legislation, and the law of costs at law, in equity, and in admiralty, as shown by the abovecited authorities, (as it must be read to understand it,) and it is plain that these "docket fees" in civil cases, as well as the deposition fees, are a lump sum substituted for the small "fees" allowed attorneys and solicitors under the old system, chargeable to and collectible from their clients, in addition to "such reasonable compensation for their services" as they may charge and receive, (Rev. St. § 823;) and that this lump sum is only taxable as costs against the losing party "in cases where by law costs are recoverable in favor of the prevailing party." Rev. St. § 983. In other words, the whole general law establishing the principles upon which costs are or are not taxable as between party and party is adopted, and this statute only prescribes the items that may be taxed in the bill. And here, now, and in every equity case when the court comes to adjudge costs, it will determine what costs and to which party they are taxable; and this not alone upon two words in one section, but upon the whole statute and the general law which it adopts.

But, upon an implication based upon the use of two indefinite

words that are erroneously supposed to mean, technically, that ceremony of trial in equity which takes place when the issues are made, the proof taken, and the case is heard by the chancellor "upon its merits," we are asked to overthrow a principle in the law of costs, established, as I shall presently show, by a series of statutes, the oldest of which was enacted nearly 500 years ago, namely, that when a plaintiff makes a false clamor in court, or files a bill in chancery, and dismisses it without trial, he shall pay to the defendants full costs, including the fees due his attorney. And we are besought to do this when the act of congress itself requires that the costs shall be taxed "in cases where, by law, costs are recoverable in favor of the prevailing party," and only in such cases, and especially mentions the fees due the attorney in the same connection with those due the clerk and marshal, and requires them to be taxed by the same words it requires the fees of those officers to be taxed in cases like these. Rev. St. § 983.

Now, no book of practice or accurate writer ever describes the trial of a cause on its merits as the "final hearing." There was 'a subpoena to hear judgment" and a "hearing," but it is called "the hearing," not a "final hearing." 1 Bouv. Dict. tit. "Hearing;" 2 Daniell, Ch. Pr. 967-986. Demurrers are "heard," and pleas are set down. for "hearing" or argument, and exceptions to reports are set for "hearing," etc.; but the trial on the merits is "the hearing." It may or may not be the final hearing, for after it there often come other hearings, such as exceptions to the master's report, often more important and formidable than the other hearings, or on further applications for instructions, etc.; so that, strictly speaking, the "final hearing" is the last hearing. At least, it cannot be accurately applied to the trial on bill and answer, or on bill, answer, replication, and proof, and confined to that. But the distinction between final costs and interlocutory costs was well established, and may well be supposed to have been in the minds of the legislature when dealing with the subject of costs. The former are awarded, not necessarily, nor always properly, though possibly they are generally, by the decree made at the hearing, "upon the bill, answer, replication, proofs, and former proceedings had," as the formula goes, for a decree "on the merits," as it is called at the bar, and in common parlance. The "final" costs may be, and should be, reserved until the very end of the case, which often comes after "the hearing," when the matter of costs is "finally" disposed of by the court. As an illustration of this distinction, the familiar test of a final decree may be referred to, for it is often said that a decree is final which adjudges costs.

It is to be observed that the statute uses the words "on final hearing," not "for final hearing;" "on a trial by jury," not "for a trial by jury;" "when judgment is rendered without a jury," not for a judgment so rendered; and "when a cause is discontinued," not for the discontinuance. But subsequently the phraseology is changed, and

we have for scire facias, for each deposition, for services rendered in appeal cases, etc. This shows that the docket fee is general, and the time when it may be taxable is designed to be expressed as "on the final hearing," and not a charge for services then and there rendered. Rev. St. § 824.

Indeed, this act of congress intends only, by such phraseology, to prohibit interlocutory costs to be taxed for fees paid to attorneys, solicitors, and proctors, as, but for the statute, they might be. It does not prohibit interlocutory costs to be taxed and paid for services of clerks, marshals, and commissioners, and it is the constant practice to allow them, on continuances, the overruling of demurrers, hearings on the sufficiency of pleas, etc. But as to his attorneys, solicitors, and proctors, the prevailing party must await the final decree as to costs and this is not necessarily that decree made at the hearing on the merits, for often the decree for costs comes long after thatand then take a lump sum for all the services. If his case be at law, and there has been a jury trial, $20; if a judgment without a jury, $10; and if a discontinuance, $5. If his case be in admiralty (except in a special case mentioned in the proviso) or equity, always $20, whenever the case is "finally heard" as to costs. There is, by this construction, no distinction between cases at law or in equity as to the rule that only final and no interlocutory costs shall be allowed for the attorney. They are all alike in respect of this, but for obvious reasons there are graded fees allowed by the statute in law cases, and one sum in equity or admiralty cases, and this because of the comparative differences in the labor of preparation. There could be no reason for allowing a fee of $5 to be taxed when a lawsuit is discontinued, and none when a bill in equity is dismissed; but good reason for allowing $5 in the one case and $20 in the other, if we take into view the mere worth of the service. But when we consider the rules of law which regulate both courts, as old as the law itself, and that section 983 of the Revision adopts those rules in the plainest terms, and construe the whole statute together in the light of the law of costs applicable to the two cases, and remember the excess of professional labor in equity over law cases, the reason of the distinction in amount and the necessity of no distinction in the principle of taxation at once appear. The whole statute then becomes consistent in all things, and aligns itself completely with well-established principles, which are found in the law of costs as the product of a most wise and intelligent system of legislation, as venerable and binding as any known to our jurisprudence.

At common law-that is, the most ancient common law-costs were not known, but the plaintiff who made a false clamor, and either failed to try his case, or, trying it, failed to sustain it, was amerced heavily, and the fine went to the king as a penalty for his invasion of a court of justice. It was the same if he took a nonsuit. 17 Amer. Law Reg. (N. S.) 693, and authorities above cited.

I shall not take space to trace the legislation for courts of law which, from the earliest statutes of Marlbridge (A. D. 1267) and Gloucester, (A. D. 1278,) will be found a complete parallel to the legislation I am about to cite in respect to costs in equity, and which, by constantly increasing severity, sought to discourage false suits by giving a defendant full costs against a plaintiff who failed in his action, and was especially severe on one who discontinued his suit, or was nonsuited for his own default without a trial; these costs to the defendant taking the place of the former fine to the king. 2 Tidd, Prac. 976 et seq.; 2 Bl. Comm. 439; 3 Bl. Comm. 188, 357, 399, 451; 17 Amer. Law Reg. 693.

Mr. Beames, who wrote a little before our equity rules were promulgated of the practice as it was then understood, gives an intelligible account of the general principles on which a court of equity acts in giving or withholding costs; and according to these principles, as I have endeavored to show, we are bound to determine the questions on this motion, for it is now for the court to decide whether these defendants are entitled to have costs, and if so, what costs, taxed as "recoverable by law" in favor of the prevailing party, for sums presumably already paid by them to the clerk, marshal, and solicitor, or for which they are liable to these persons. Rev. St. §

983.

It is within the discretion of the court to give or withhold them on either side, or to give some and withhold others, or to divide them, not arbitrarily, but according to the practice known to courts of equity and found in the authorities on the subject. This author tells us that the statute of 17 Richard II. c. 6, (A. D. 1394,) was the very foundation of costs in equity, and it enacts:

Forasmuch as people be compelled to come before the king's council, or in the chancery, by writs grounded upon untrue suggestions that the chancellor for the time being, presently after that such suggestions be duly found and proven untrue, shall have power to ordain and award damages according to his discretion to him which is so troubled unduly, as before is said." Beames, Eq. Costs, 4.

rer.

It is noticeable that the very question we have in this case arose on this statute, and Lord CoKE gave it as his opinion, citing some. decisions in the Year Books, that, on the strength of the words italicized in the above extract, costs were not taxable unless the case was tried, and therefore were not recoverable upon dismissal or demurBeames, Ch. Costs, 6, and note; 2 Comyn, Dig. 426, "Costs." Subsequently Lord HARDWICKE refused to recognize the force of this construction, or that the powers of the court were limited by this statute, and claimed that always and without its authority the court, "from conscience and arbitrio boni viri, as to satisfaction on one side or other, on account of vexation," decreed costs. Id. 8; Burford v. Lenthall, 2 Atk. 551.

The statute of 15 Henry VI. c. 4, recited that "divers persons were

greatly vexed and grieved by writs of subpoena," and enacted 'that "surety be found to satisfy the party so grieved and vexed, for his damages and expenses, if so be that the matter cannot be made good which is contained in the bill." Beames, Ch. Costs, 7. Owing to the construction of the earlier statutes above mentioned, costs were not taxable on dismissal except at 40 shillings, unless by special order for further allowances in particular cases, until the statute of 4 Anne, c. 16, § 23, (A. D. 1706,) "for preventing vexatious suits in courts of equity," which enacted "that upon the plaintiff's dismissing his own bill, or the defendant's dismissing the same for want of prosecution, the plaintiff in such suit shall pay to the defendant or defendants his or their full costs, to be taxed by a master." Beames, Ch. Costs, 85. This act not applying in terms to a dismissal at the hearing, the plaintiffs, in order to evade the effect of this legislative provision, adopted the plan of setting the case down for hearing on bill and answer, and then having the bill dismissed with 40 shillings costs; whereupon, on April 27, 1748, Lord HARDWICKE made a rule of court which declares "that when any cause shall be brought to a hearing on bill and answer, and such bill be dismissed, this court may and is at liberty to direct and order such dismission to be either with 40 shillings costs, or with costs to be taxed by a master, or without costs, as the court, upon the nature and merits of the case, shall think fit." Beames, Ch. Costs, 86.

This author, in other places above referred to, shows conclusively that everything was done, by legislation and by the practice of the court, to give a defendant full costs when the plaintiff dismissed his bill; and this legislation was continued to the latest statutes long after he wrote, as will be seen by reference to the other writers above cited. Now I cannot think that upon an implication based on what I have endeavored to show was a somewhat loose and untechnical use of two words "final hearing"-in fixing the amounts to be taxed as costs, we are to repeal all this legislation which is a part of that law to which section 983 of the Revised Statutes and equity rule 90 refer us for the principles upon which we are to proceed "where by law costs are recoverable in favor of the prevailing party." It is contrary to all the canons of construction to do this, and is merely sticking in the bark of one phrase used in the statute to the neglect of the rest of it.

A plaintiff, as will appear by the authorities cited, cannot dismiss his bill without a hearing by the court, nor without its order. This is especially so when he asks to dismiss "without prejudice," as was done in some of these cases. And, while it is quite a matter of course to grant the order, it is not absolutely so, and it will not be done where the defendant has acquired the right to object. Stevens v. The Railroads, 4 FED. REP. 97; Booth v. Leycester, 1 Keene, 247; S. C. 15 Eng. Ch. 247; 1 Daniell, Ch. Pr. 790. The passing of this order is done on a "hearing," to all intents and purposes, and it is a "final”