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into the foreclosure suit, where it will be enforced as a lien upon the property in the hands of the purchaser." Where Bradley was trustee under two deeds of trust, a decree appointing Johnson a trustee in his place "in the deed of trust," without specifying which deed of trust, was held void for uncertainty.38

§ 325a. Motions at the foot of a decree.

It is usual where

a suit involves the distribution of a fund in court, or otherwise affects the rights of numerous persons, to add a clause to the decree giving the right to the parties to apply to the court for other orders or direct "at the foot of the decree." It has been held that this gives no right to move to set aside a sale which has been confirmed; but that it is limited to applications for such orders as may be necessary in the distribution of the funds concerning which there is a dispute between different persons, both claiming under the decree or for the delivery of the possession of the property affected.'

§ 325b. Enrollment of decree.-By the former chancery practice, a decree did not, strictly speaking, become a record of the court until it had been enrolled; and although the court, after it had been entered, treated it as a foundation for ulterior proceedings, it was not considered to be of a nature sufficiently permanent to be entitled in other courts to the same attention that is paid by one court of record to the records of other courts of the same nature. Until the enrollment the decree was considered to be entered provisional and interlocutory, so that it could be altered by the court itself at a rehearing; 2 but it seems that an appeal to the House of Lords lay before the

37 Thompson v. Northern Pac. Ry. Co., 93 Fed. R. 384, 388; supra, § 316. Where it was claimed that a fund due from a defendant had been assigned and notices of attachment had been served, it was held that the decree should provide for the payment of the fund into court, and that the defendant might protect itself by bringing in the parties claimant. Mundy v. Louisville & N. Ry. Co. (C. C. A.), 67 Fed. R. 633.

§ 325a. 1 Wetmore v. St. Paul & P. Ry. Co., 3 Fed. R. 177.

§ 3256. Daniell's Ch. Pr. (1st Am. ed.) 1220, 1221. Although a decree which had not been signed and enrolled could not be pleaded in bar, it was held in New York that it could be set up by answer. Davoue v. Fanning, 4 J. Ch. (N. Y.) 199; Lyon v. Talmage, 14 J. (N. Y.) 501.

2 Daniell's Ch. Pr. (1st Am. ed.) 1221m, 1222, 1224, criticised the die

38 Shepherd v. Peffer, 133 U. S. 626. tum of Lord Brougham in Parker v.

Downing, 1 M. & K. 634.

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enrollment. A decree could be enrolled by a defendant as well as by a plaintiff, and at any time, notwithstanding an abatement of the suit. An enrollment could be vacated for irregularity or for surprise, mistake, fraud, or excusable neglect. After the decree had been enrolled, it could only be altered by a bill of review or an appeal to the House of Lords." The enrollment was made after the Lord Chancellor had signed the docket, by the engrossment of an exact copy upon the parchment rolls, which together with the docket were carried into the record room of the record and writ clerk's office and deposited with the record keeper for safe custody. Thereupon the enrollment was complete. In the Federal courts there is no formal enrollment such as was made in chancery; but the statute requires that a final record be made up by the clerk, and that "in equity and admiralty cases, only the process, pleadings, decree, and such orders and memorandums as may be necessary to show the jurisdiction of the court and regularity of the proceedings shall be entered upon the final record." This record has been said to correspond in some respects to the enrollment in chancery; but what effect it has upon the rights of the parties seems never to have been decided.1o

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CHAPTER XXV.

COSTS.

§ 326. Definition of costs and distinction between costs at law and in equity. Costs is the term given to the sum of money which is paid to the successful party to a litigation, to reimburse him for his expense and trouble in the same. The costs of an action at law are governed by fixed and arbitrary rules. In equity, the award or denial of costs is always in the discretion of the court; 2 and so very frequently is their amount when awarded. When, however, it is said, as it often is, that the award of costs in equity is purely discretionary, it should not be supposed that courts of equity are governed by no fixed principles in their decisions relative to the costs of proceedings before them. All that is meant by the expression is that, in awarding costs, they will take into consideration the circumstances of the cases before them and the situation or conduct of the parties, and exercise with reference to these points a discretion governed by certain reasonably definite rules, the enforcement of which is not dependent upon the caprice of the judge by whom each cause happens to be heard, but is often a ground of review by an appellate tribunal.*

§ 327. Who are given costs.- Courts of common law invariably award costs to the successful party, except in the cases hereinafter stated.' Courts of chancery in general follow the rule of the civil law, victus victori in expensis condemnatus est, and decree the payment of costs by the unsuccessful to the successful parties to a suit before it. It often happens, how

§ 326. Hathaway v. Roach, 2 W. & M. 63.

2 Riddle v. Mandeville, 6 Cranch, 86. 3 Trustees v. Greenough, 105 U. S. 527; Central R. Co. v. Pettus, 113 U. S. 116.

4 Brooks v. Byam, 2 Story, 553; Trustees v. Greenough, 105 U. S. 527; Central R. Co. v. Pettus, 113 U. S. 116.

§ 327. Hathaway v. Roach, 2 W. & M. 63.

2 Wooster v. Handy, 23 Fed. R. 49; Am. D. R. Co. v. Sheldon, 28 Fed. R. 217; Vancouver v. Bliss, 11 Ves. 458; Staines v. Morris, 1 V. & B. 8; Millington v. Fox, 3 M. & C. 338, 358; Hunter v. Town of Marlboro', 2 W. & M. 168; Hovey v. Stevens, 3 W. & M. 17.

ever, that they depart so 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. Where the line of a railroad company had been operated by a receiver of the corporation in possession of the same, it was held liable for a certain proportion of the costs of the receivership, although not a party to the suit in which the receiver was appointed, when it appeared simply for the purpose of contesting its liability for such costs.5 Under no circumstances, however, will a court dismiss a plaintiff's bill and award him costs against a defendant, 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. This principle applies to bills for an accounting; where, although on account of the uncertain state of the account the defendant may not be liable to make a tender of the balance due from him, and so omits it, yet if he has shown a willingness to ac

3 Grattan v. Appleton, 3 Story, 755; patent by a corporation and its offiBrooks v. Byam, 2 Story, 553.

4 Farwell v. Kerr, 28 Fed. R. 345; Lippincott v. Shaw C. Co., 34 Fed. R. 570; Am. B. M. Co. v. Crosman, 57 Fed. R. 1029; Heighington v. Grant, 1 Beav. 230; Seton on Decrees (4th ed.), vol. 1, p. 129; Tefft v. Stern (C. C. A.), 74 Fed. R. 755; Davis v. Parkman (C. C. A.), 71 Fed. R. 961; Ecaubert v. Appleton (C. C. A.), 67 Fed. R. 917; U. S. Sugar Refinery v. Providence S. & G. P. Co. (C. C. A.), 62 Fed. R. 375.

Pennsylvania Co. for Insurance, etc. v. Jacksonville, T. & K. St. Ry. Co. (C. C. A.), 66 Fed. R. 421; Tesla El. Co. v. Scott, 101 Fed. R. 524.

6 Barnes 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. Where a bill to enjoin the infringement of a

cers was dismissed as against the officers, but sustained against the company, it was held that the individual defendants must pay their own costs and such as were incurred in bringing them into the suit, but not a docket fee. National F. B. & P. Co. v. Dayton P. N. Co., 97 Fed. R. 331, 333. See also Consolidated B. S. Co. v. Chicago, P. & St. L. Ry. Co., 69 Fed. R. 412.

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

8 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 N. B. Tp. v. Halsey, 117 U. S. 336.

9 Millington v. Fox, 3 M. & C. 338, 352; Lowell Mfg. Co. v. Whittal, 71 Fed. R. 515.

count, the court may relieve him from paying costs.10 If a plaintiff charge fraud which he fails to prove, although he establishes his case on other grounds," 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, or if he have been guilty of laches,14 which do not bar his claim entirely, he will be denied costs. A defendant will also be denied costs when successful under similar circumstances; 15 for instance, when the plaintiff's bill is clearly bad and he answers instead of demurring.16

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Instances where costs have not been given to a successful party, because the situation of his adversary appealed to the sympathy of the court, were where the decision of the case involved the decision of a difficult and doubtful question of law," especially in suits brought for the specific performance of a contract affecting the sale of land; 18 where the court enforced a contract made upon a very inadequate consideration; 19 and 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

10 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.

11 Wright v. Howard, 1 Sim. & S. 190; Scott v. Dunbar, 1 Molloy, 442. See Fisher v. Boody, 1 Curt. 206, 223. 12 Baldwin v. Ely, 9 How. 580. 13 Debenham v. Ox, 1 Ves. Sen. 276;

Davis v. Symonds, 1 Cox Eq. 402.

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

15 Atty. Gen. v. Brewers' Co., 1 P. Wms. 376; Bunker v. Stevens, 26 Fed. R. 245.

16 Brooks v. Byam, 2 Story, 553; Harland v. Bankers' & M. Tel. Co., 32 Fed. R. 305. Where the defendant, after an unsuccessful defense upon the merits, raised for the first time a fatal jurisdictional objection by a motion to dismiss his own writ of error, the Circuit Court of Appeals

imposed upon him the costs of the writ of error and left the question of the costs below to be decided by the Circuit Court. Hunt v. Howes (C. C. A.), 74 Fed. R. 657. Where a bill filed by trustees was dismissed upon appeal for failure to plead the jurisdictional facts to which no objection had been made, it was held that the costs should be taxed against the complainants as trustees only and not against them individually. Tug R. C. & S. Co. v. Brigel (C. C. A.), 70 Fed. R. 647.

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, 2P. Wms. 127.

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