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 and consideration of the laws of the United States upon the subject. ofmilles 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 authol-it.y which we follow on that subject is Gold Washing If Water Co. v. Keyes, 96 U. S. 199. In that ease 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 theii right to recovei' 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 mainta;ned in this court, and will be dismissed, pursuant to the motion of the defendants 3ee Kerlin,g v. Cotzhausen, 16 FED. HEP. 705; State of Illinois v. Chieaqo, B. & Q. R. Co. ld. 706; Adams Exp. Co. v. DeuceI' & R. G. Ry. Co. ld. 712; MyeTs v. Union Pac. Ry. Co. ld. 292; Cruikshank v. Fourth Nat. Bank, rd. 888; Bates v.New Orleans, B. R. & V. R. Co. ld. Ellis v.1YfJrtolt, ld. il.
GOODYEAR and others v. SAWYER.
(Uircuit Court, W. D. Tennessee,
June 29, 1883.)
COSTs-EQUITY PRACTICE-BILL DIS\nSSED BY PLAIXTIFF-DOCKET WREX TAL.\BI.E-RE\'. ST. §§ 823, S2.!, AXD 983,
'Yhen a bill in equity is, after answer filed, by ne plaintiff, on his own application, e.ither generally or "without prejudice," the granting of such an order is a" final hearing " in the sense of Rev. tit. §§ 823 and E24, and the solicitor's d0cket fee of $20 is then taxable as part of the of the case, "recO\'eraule in favor of the prevailing party," in the sense of Hev. 61. § 983. This results from the general law of co,ts in courts of equity which is adopted by this act of congress, so far as relates to till! prindples go\'erning the court in the taxation of costs, as bet,,'een party and party.
GOODYEAR V.SA WYER.
AFTER DECREE FOR ACCOUNT AND COSTS.
'Where there has been a decree for an acconnt and costs against the dcfendLJIlt subsequently the plaintiff dismisses the bill, the docket fee is taxable III favor of thc ddcllllant, 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 in'ringement 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 plaintifta' solicitor, - "dismissed without prejudice, at the cost of complainant, for which costs to be herein taxed let execution issue." This w.as done on the regular call of the docket. In No. 146 there was a decree at the hearing on 1\1arch 30,1872, for an injunction and an account, and against the defendant for costs; but on December ;:l0, 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 oh 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 dismissalisadocketentry, thus: "August 5, 1873. Costs paid;" and No.15S, 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 re. tax and strike out the docket fees for the solicitor was made in aU the caSQs. D. M. Scales, for the motion. George Gillham, cOl/tra. HA:lDIOXD, J. Until the practice of this comt conforms more closely to the equity rules, and the analogies to which equity rule 90 directs ;us for our go,ernmellt, and is less influenced by the more modern
system erected by legislation for the state courts of equity, to be found in our Ten'lessee Code, there must be a good deftl 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 cases. The contention here that there can be taxed no solicitor's fee becanse 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 uecessity for them in onr federal practice has been emphasized, there has been a general neglect to file tbem, as by the plaintiffs in these case,s. 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. 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. Pl'. (5th Ed.) 964-:>71. The cases go to the trial docket, under the practice grown up in clerk's office, even before answer filed, and are called term after term, and whatever 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 naVf\r 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 eqnity 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 interlocntory steps authorized to be done in vacation or at ruledays for the preparation of a cause, but essentially a final disposition of it. Eqnity Rules, Nos. 1-6; 1 Daniell, Ch. Pl'. Stevens v. The BlIilrvllds, 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, e,en after an account had been ordered. With this constant tenL1ency to mix state with federal practice, 'Which
GOODYEAR V. SAWYER.
prevails in states as well as this, and which, no doubt, influences legislators, as ",ell as the bar and bench, it is misleading to overlook tile tendency in construing statutes or adj ul1icating 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 ",ithout it if the defendant has no special interest to protect, procure an order to dismiss after a decree ordering an account. 1 Daniell, Ch. Pl'. 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 till 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. "\Ve have, then, the simple questivn 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 .l>f equity, and not one bet",een the attorney und 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 circumstancee, as costs against the losing party in favor of the prevailing party at law, rmd as the court may direct in equity. Rev. St. § 823; Caldwell v. Jackson, 7 Cranch, 276; Anon. 2 Gall. 101; In ore Stover, 1 Curt. 201; Lessee v. Aruuncle, 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 gen. erallaw. In some states, notably Tennessee, this allowance of costs to attorneys never prevailed, mostly for the reason that nnder 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 pre, vailed in England. There certain items were taxable as attorn'3.Y'c fees, quite as a matter of course, and others were or were not taxablE according to the peculiarities of the case; the whole subject bein2 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 aE a matter of right; but inequity, 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 aE it may deem just. Trustees v. Greenough, 105 U. S. 535; Lottery Co. Vi Olark, 16 FED. REP. 20; U. S. v. Tn:adwell, 15 FED. REP. 532; IViega'nd v. Oopelcmd, 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 regulatiollE fixing small sums for particular services of the clerk, attorney, OJ: other officer of the court. Those that were final were not necessarily for services performed in and about the ceremony of trial or "finti'l 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 lim,. ited 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 nos between party and party simply, or between party and party as if between solicitor and client, or the summary taKation statutes designed to control the relation and the fees chargeable between the - solicitor and the client, but haying 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 importauce, particularly since the equity rules specially refer us for analogies to the old practice in all its departmeuts. 2 Daniell, Ch. Pl'. (5th Ed.) 1376, 1378, note 1, 137D, 1395, note 6, 1398, note 4, 1410, note 4, 1434-1452; 2 Mad. Ch. 413-436; 1 New!. Ch. 393-427; 2 New!. Ch. 3ao ; Beames, Eq. Costs, (20 Law Library,) 4, 85, 15D, 1fjO, 184, 214-230, 236; 2 Bac. Abr. it. "Costs," (BOllY. Eel.) 183; 2 Tidd, Pro (3d Amer. Ed.) 9:1:3, 976;
2 Fisher's Dig. tit. "Oosts"; 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 honorariwn for the work gone through with in the ceremony of a trial at the "fmal hearing," and there is an unnecessary conflict Jf 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 com· missioners, 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 "fmal 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 pJlowances prescribed for "cases at law" bJ' the same statuts. 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 sElctions 823 and 983 of the Revision. Reading thewholp statute together, as originally passed, and as it is found in the Revision, in the light of previous legislation ancl the pr'\ctice under that legislation, and the law of costs at law, in equity, and in admiralty, as shown by the above. cited authorities, (as it must be read to understand it,) and it is plainthat these "docket fees" in civil cases, as well as the deposition fees, 1'''e a lump sum substituted for-the small "fees" allowed attarand solicitors under the old system, chargeable to and collectible from their clients, in addition tJ "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 1chert' b,l/ law costs cu'e recoverable in favor of the Inet'aili;ig party." Em', St, § 983. In other words, the whole general law esta blishing the principles upon which costs are or are not taxable as between party and party is adopted, and this statute only prethe items that may be taxed in the bill. And here, now, and 1ll every equity case when the court comes to adjudge costs, it will determine what costs and to which party they are taxable; and this 110t 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 supposeLl 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. Ani 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 reqnires them. to be taxed by the same words it requires the fees of those officers to be taxed in cases like these. Rev. St. § U83. Now, no book of practice or accurate writer ever describes the trial of a cause on its merits as tlle "final hearing." There was "a puma to hear judgme!lt" and a "hearing," but it is called "the hearing," not a ''filwl hearing." 1 Bouv. Diet. tit. "Hearing;" 2 Daniell, eh. Pl'. 1l67-!l86. Demurrers are "heard," and pleas are set down for "hearing" or argument, and exceptions to reports are s::t for "hearing," etc.; but the trial on the merits is "the hearing." It mayor may not bE; the .final hearing, for after it there often come other hearings, such as exceptions to the maste.:'s report, often more important ana formidable than the other hearings, or on further applications for il13tructions, etc.; Sl) 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 cost". The former are awarded, not necessarily, nor always possibly they are generally, by the decree made at properly, the hearing, "upon the bill, amwer, 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, resened until the very end of the case, which often comes after "the hearing," when the matter of costs is "finally" dispo:;ed 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;" "0/1 a trial by jury," not ''jor a trial by jury;" "when judgment is rendered without a jury," not for a judgment so rendered; and "when a canse is discontinued," not for the dis.::ontinuance. But subsequently the phraseology is changed, and '
we have for scire facias, for each deposition, for services renaereJ. 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 l:lUst await the final decree (M 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, $JO; 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 betweon cases at law or in equity as to the rule that only final and no interlocutory costs shall be allowed for the attorney. 'fhey 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 ill 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 bw 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 eitlIer failed to try his case, or, trying it, failed to sustain it, was amerced heavily, and tLe 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 courLsof In w 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 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 tlJ.en 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 presnmably already paid by them to the clerk, marshal, and solicitor, or fa:: 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 tell!? us that the statute of 17 Richard II. c. 6, (A. D. 1394-,) was the very fcundation of costs in equity, and it enacts:
"Forasmuch as pp,ople be compelled to cOllle 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 snch suggestions be dilly found and proven untrue, shall have power to ordain and award damages according to his discretion to him which is so troullleu unduly, as llefore is said." Bearnes, Eq. Costs, 4.
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 demurrer. Beames, 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 arbitriv [·vni riri, as to satisfaction on one side or other, on account of ve:ratioll," decreed costs. ld.8; Burfordv. Lenthall, 2 Atk. 551. 1'he statute of 15 Henry VI. c. 4, recited that "di,ers persons "'E\re
greatly vexed and grieved by writs' of subpmna," and enaded 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 cOlltainen il1 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, :j:Jord 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 ",ill not be done where the-defendant has acquired the right to object. Sterens v. The Railroads,4 FED; REP. 97; Booth v. Leycester, 1 Keene, 247; S. C. 15 Eng. Ch. 247;' 1 Daniell, Ch. Pl'. 790. The passing of this order is done 00 a "hearing," to all intents and purposes, and it is a "final"
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 was not, but this is not certain; and by a comparatively recent order of court (promulgated A. D. 1852, since our equity rules) H 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. settled the controversy on the subject in a way that is wise and just, whether binning 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 caHes nismigced in inl"ito 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 reaSOll. Its general effect is st:tteLl in the cases of The Bltltimol'e, 8 Wall. 377, 3!J 1; Costs in Civil Cases, 1 Blatchf. 652; District Attorney's Id. G47; The Liverpool P,/cltet, 2 Spr. 37; Hathaway v. Roach,2 Wood. & M. 63; Jerlllun v. Stewart, 12 FED. REP. 271, and other cases there cited. The general result was that, except during a short time of temporary statutes mltking partial and some statutes applying to special cases, the federal courts were left to follow the state practice ill cases at law, and the geueral 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. J ustice says that long after it expired it COlltinued, without objection, to go\'ern the taxation of costs, nntil 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. Tile "counselor or attorney" was allowed "the stated fee for drawing an(l exhibiting libel, etc., in each canse three dollars; dmwing intenog1ttlJries tllree dollars; and all other services ill anyone cause three dollars." It then proceeded to enact:
"Sec. 4. That there be allowed a'lll taxed in thE' snpreme, circnit, and district courts of the Uniteu i::itate>l. iH fi/"Ol· of the parties obtailli/tf} judgments therein,such cUlUl'ells;Ltion for their travel an,l attenuance andfor attol"lIe!;'s and co/tllsdor':j fees, eX('ept in the c1i.<tr.ct courts of aumiralty anu maritime jurisdiction, as are allowed in the slIprt'lne 01· superior courts o! t!le respecti ve states." Act c. :W, § 4, (1 at Large, 3JJ;) .Act 1/ !J1l, c. 11, (hl. 451.)
The act of 18;>2 was intender1, in my jndgment, to express precisely what this section of tlle act of 17!J3 enacted as to attorney's and counselor's feeg, but to fix the amounts in all cases of law, equity, and adminl.lty, to confine itl:l operation tofiltal costs, and exclude any
allowance for attorney's on interlocutory judgment.s; 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 ad 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 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 Dedekflrn v. Vosc, 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,-iirst 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. 1'1'Oy Factory v. COT/ling, 7 Blatch£. 16. In Hayford v. Griffiths, 3 Blatch£. 79, an appeal in admiralty was dismissed before the hearing, l.mt on motion of the gdverse party, and it was held the docket fee was taxable "on a final disposition of a canse on the calendar," which is precisely the ruling I make in these cases. rrhere 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 Goodyea.r v. O!5[Jood, 13 O. G: 325, it was held that "wherever a final decree is entered by the court in an equity cause, after replication .tiled, for the purposes of taxation of the docket fee this is to be considered as the' final hearing' reftrred to in the Revised Statutes, § 8:H." 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 SIIEPLEY'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 because of an iuterlocutory decree in another case, or for other reasons. If he voluntarily, as he certainly did in the two cases mentioned 111 the report of the facts, which were not included in the stipulation as to the case against Davis in which the interlocutory decree was tht're was no "final hearing" as those words are interpreted III Coy v. Perkins, supra. The construction placed on the opinion in Goodyear v. Osgood, supra, by Goy v. Perkins, 8upra, 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
· FEDERAL REPORTER.,
decree iri another abide which he is not bound by any stipulation-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 confnsion 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 sayan what reasoning he ruled, nor precisely the state of the case. It only appears that t3e 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 withont any judgment by the court. There the accidental circumstance that proof had been heard constituted "a final hearing," but the court cited Hayford v. supra, somewhat approvingly. In Strafer v. Carr, 6 FED. REP. 466, and in Hnntress v. Epsom,] 5 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 it 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 accmes. 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 tne fee is not given "in proportion to the labor performed," and it seems to be introducing a ,eery uncertain element of. construction into the statute to cast about and see what v,'as 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 IIliunde the record to see how mucll of a hearing there' was, .what .counsel did, and what the' court did, and such other matters of fact as would enable him to termine whether there was a' "final hearing;" and in the end, as the adjudicated cases show, there wonld be great disagreement as to: what constituted a "final hearing," and tile effect of varying circumstances on the question.' ..
But in Schmieder v. Barney, 7 FED. REP. 451, PC?' 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 onHaJlford 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 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 befoi'e pointed out which arises when we depart from it. The cases of Coy v. Perkins, 8UprfJ, and Yale Lock Co. y. Colrin, 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 respectflllly 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 Ii' careful in-. vestigation, and this must be my apology for the undue length of this opinion. Nothing less than a com'iction, 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.
CITY OF NEW OnLEAKS.
(Circuit Court, E. D. Louisiana. lIay 3, 1883.)
A bill for a discovery lies, even when the action to be supported sounds in tort. In a suit for an accounting as to the rents and profits of real property for a pcriod of 45 which must Le takcn accordng to the laws of LOUlsiana, and wherein the dcfendant must be charged With the rents and prot1ts wh,eh have bc, n, or ought to have been, annually receiVld, and ered.ted with the yearly expenditures for reclamations, improvements, and taxes; and when snch an aecount has refercnee to hundreds of lots of ground,-it is of a most complex and involved ehalacter, wlndl eould not Le dealt with upon a trial at law at h1S' priu", and the complexity of the account is, there10re, a ground of equity jurisprudence. In a case whcre the complainant ll::ls recovered jndgment against several hundred actual tenants for rents and protits for varying portions of a long period, and Ihose tenants are and the defendant IS tLe warrantor of all those tenants, and whatever tbey owe the compJallJant the defendant owes to them; and when the defendant is not onh' a warranlor, hut a warrantor in bad faith, who has enriehed herself by in bad fa th the compla!,Ilant's property and selling it at a large pl'otit,-tlte complainant, having no re,lledy at Jaw upon tIJi. warranty for want of privity, has a right of achon in equity. Riddle v. JIandeville, 5 Oruneh, 322. Equity will not allow a party, ultimately liable, to keep, for his own advantage, an intermedi:tte and insolvent party in pos,eSSlOn, who .s, in responsible to tlw lawful owner, and therelly enrich him,clf out of the property of that owner thus dlsposses"d, and eSl:ape liallility to hlllr for want of a made of action.
:l. S.BIE-ACCOUNTING-RENTS AND PHOFITS OF HEAL EsTATE.
RENTS AND PnOFITS.
According to all the authorit'es, both under the common law and the law of LouiSiana, a suit for rents and profits could nuL uave "e"n UI'uugl.lt uUlIl too eOlllplalllant had recovered Gaines v . .L\·ew Or;cttns, 15 \v' all. In an ejectment hill against a party hoMing by an adverse Htle, there could lle no trust raised up a, to tho price l'ecllh'ed UV 111m in l:ase ot s'ife.
I'O,.SESSOIl IN BAD FAITH.
Tile pilsses,or in bad faith is bonnd to surrender the thing immeJiafe'y: and the s.:ll.·r and warrantor, whu tooK an,1 con ve.red in "au fa.tb, is bound forthwith to restore tho prL e to his vendee, and to acquit, i. e., for 111m his Habil.ty to the owner for frUits, w.thunt suit or condemnallun.
He who, with a motive to deprive another of that which he knows Is justly that other's, e;uploys the process aud llIadllnery of tl e courts, is umler two to satisfy all damages wu.ch that other Ihcreby sulfers. The damac:es spl'inc:ing from the 'l'gitunate exere.se of legal rights, even when there IS absence of ma!ile, and therll iF good faith, mnst. to lhe settled law of Loui_iana, at least place the injured party in the situation in whkh he wou.d have been if the disturbance baJ not taken place. 9. "\YAHRANTY AND "\V AHRANTOR. The warra'ltar is, by the settled jurisprudence of Lou 1siana, thp defend. ant. The judgment is binding upon the warrantor it he lJeeo1 e"llvd in warranty, or he is apprised of suit having been llrought·
· r.epltled br Joseph P. Hornor. Esq, oftM New Orlean. I,ar.