to be no ground for refusing the defendant costs." Costs are usually included in a decree for a perpetual injunction against the infringement of a trade-mark, although no demand that he cease using the trade-mark was made on the defendant before the suit was brought."

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 where 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.”

The English rule seems to be, that it is beneath the dignity of a sovereign to demand costs, and that, therefore, when he is successful in a suit, his counsel will waive all claim for any.28 In the Federal Circuit and District Courts, however, costs are

21 Fargo v. South Eastern Ry. Co., damages, it was held that the stat 28 Fed. R. 906. ute should be applied by the Federal courts after a removal. Reichter v. Magone, 47 Fed. R. 192.

22 Sawyer v. Kellogg, 9 Fed. R. 601. 23 U. S. R. S., § 968. For a peculiar case, see National Steamship Co. v. Tugman, 67 Fed. R. 16.

26 Eastman v. Sherry, 37 Fed. R. 844; Johnson v. Watkins, 40 Fed. R.

24 Hamilton v. Baldwin, 41 Fed. R. 187. 429.

25 Field v. Schell, 4 Blatchf. 435; Ellis v. Jarvis, 3 Mason, 457: Kreager v. Judd, 5 Fed. R. 27. Where the State statute provided that in certain cases, if the plaintiff recovered less than a specified amount of damages, his costs should not exceed his

27 Gibson v. Memphis, etc. R. Co., 31 Fed. R. 553. For the rule under the practice at common law in Tennessee, see Johnson v. Mississippi & T. R. Co., 31 Fed. R. 551.

28

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

awarded to the United States, even when not specifically prayed for in the bill.29

In suits in the Court of Claims, Circuit or District Courts to adjust claims against the United States, costs cannot be allowed unless the government put in issue the right of the plaintiff to recover; and then only in the discretion of the court.30 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." 31 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," nor upon the dismissal of condemnation proceedings instituted by them.33 No costs are awarded for or against the United States in the Supreme Court, or in the Circuit Court of Appeals," but a Circuit Court of Appeals has awarded costs of the Circuit Court against them upon an appeal from the decision of a board of appraisers.35

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."

36

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; 37 when a defendant has been necessarily made a party to a

29 U. S. v. Southern Pac. R. Co., 56 Fed. R. 865.

30 24 St. at L. 508, § 15. 31 24 St. at L. 508, § 15. 32 U. S. R. S., § 969.

33 Carlisle v. Cooper, 64 Fed. R. 472. 34 S. C. Rule 24; C. C. A. Rule 31. 35 U. S. v. Davis (C. C. A.), 54 Fed. R. 147. Contra, Marine v. Lyon (C. C. A.), 62 Fed. R. 153.

36 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.

37 Wright v. Howard, 1 Sim. & S. 190. For example, where the complainant obtains only a small part of the relief which he prayed and the greater part of the expense of the litigation was caused by his unsuc cessful claims. Thomson-Houston El. Co. v. Elmira & H. R. Co., 71 Fed. R. 886. See also Ecaubert v. Appleton (C. C. A.), 67 Fed. R. 917. Where it was held that a party had improp erly filed a cross-bill, but relief was given him upon the theory that his cross-bill should be considered as a petition of intervention, he was re

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; and when a bill is filed to redeem a pledge or relieve an estate from the burden of a mortgage or other incumbrance.39 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, he is obliged to repay the amount of those costs to the winner.40 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.41 In suits founded upon 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. Where a suit at law, equity or admiralty is dismissed in the court of first instance for want of jurisdiction over the person of defendant or over the subject-matter, or for a lack of the requisite difference of citizenship, no costs are allowed, provided that the complainant's plea does not allege the jurisdictional facts; 43 but where in such a case he has averred facts which would give jurisdiction, costs will be awarded against him. 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 removal.5 When cases were begun in State courts and afterwards removed, the costs accrued in the State court before the removal have

quired to pay the costs upon the cross-bill in the original court and the court of review. Gregory v. Pyke, 67 Fed. R. 837.

38 Crew v. Joliff, Prec. in Ch. 93; Luxton v. Stephens, 3 P. Wms. 373. 39 Taner v. Ivie, 2 Ves. Sen. 466, 468. 40 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.

41 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.

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

43 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. N. H. S. Co., 18 Fed. R. 588.

44 The City of Florence, 56 Fed. R. 236; Lowe v. The Benjamin, 1 Wall. Jr. 187; Thomas v. White, 12 Mass. 367; Sawyer v. Williams, 72 Fed. R. 296.

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

46

been allowed. No costs are usually granted in a case in the Circuit Court where the judges are divided." 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.48 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.50 In a case where the appellant succeeded only in modifying the decree, it was held that neither party should have the costs of the appeal. A party who by stipulation took no part in an appeal is not entitled to any costs in the appellate court." The fact that the decree is affirmed upon grounds not stated in the opinion of the court of first instance does not necessarily deprive the respondent of costs.53

51

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

46 Wolf v. Insurance Co. (D. Mich.), 1 Flip. 377; Cleaver v. Traders' Ins. Co. (D. Md.), 40 Fed. R. 863. See Central T. Co. v. Central Iowa Ry. Co., 38 Fed. R. 889. Contra in the Second Circuit. Chadbourne v. German Am. Ins. Co., 31 Fed. R. 625; Clare v. National City Bank, 14 Blatchf. 445.

47 Veazie v. Williams, 3 Story, 611, 632.

48 Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379; Continental Ins. 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. Where the defect in jurisdiction was raised by the appellant for the first time upon

the appeal, it has been held that he could not recover his costs in the latter court, but that the costs below should be divided, Tug River C. & S. Co. v. Brigel (C. C. A.), 67 Fed. R. 625; and in one such case the costs of the writ of error were imposed on the appellant. Hunt v. Howes (C. C. A.), 74 Fed. R. 657.

49 Bradstreet Co. v. Higgins, 114 U. S. 262; Cir. Ct. of App. Rule 23.

50 The William Cox, 9 Fed. R. 672. 51 New England R. Co. v. Carnegie Steel Co. (C. C. A.), 75 Fed. R. 54. 52 Pollard v. Reardon, 65 Fed. R. 848. 53 Post v. Beacon V. P. & El. Co., 89 Fed. R. 1.

§ 328. 1 Trustees v. Greenough, 105 U. S. 527; Central R. Co. v. Pettus, 113 U. S. 116.

2 Trustees v. Greenough, 105 U. S.

§ 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 libelant 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

A docket fee is taxed for a hearing upon an appeal. It has been held that a docket fee can be taxed for each hearing, including a rehearing, 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. When a demurrer is sustained,

527; Central R. Co. v. Pettus, 113 mon-law side of the court; and suits U. S. 116.

§ 329. 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. A state statute allowing an extra allowance in a partition suit was followed by the Federal court. Willard v. Serfell, 62 Fed. R. 625. The question whether counsel fees stipulated for in a note or mortgage can be taxed, depends upon the local law of the State in both suits on the com

in equity, so far as taxation against the defendant is concerned. Bendey v. Townsend, 109 U. S. 665; Dodge v. Tolleys, 144 U. S. 451; Gray v. Havermeyer, 53 Fed. R. 174. See also Fowler v. Equitable Tr. Co., 141 U. S. 384; Robinson v. Alabama & G. Mfg. Co., 51 Fed. R. 268; American F. L. M. Co. v. Whaley, 63 Fed. R. 743.

2 Kansas City, Ft. S. & Mo. Ry. Co. v. McDonald, 60 Fed. R. 522; John Shillito Co. v. McClung, 66 Fed. R. 22.

3 Am. D. R. B. Co. v. Sheldon, 28 Fed. R. 217; Peck S. & W. Co. v. Fray, 92 Fed. R. 947.

4 McLean v. Clark, 23 Fed. R. 861.