state, and does not undertake ·to do so. Y,Then a comes into equity in Massachusetts, or in the circuit court, he must do equity, as understood by the court in which he sues. If, then, the defendants held the notes for which the bond and mortgage are said to have been given, and if they were so given, there could be no redemption without payment. . For these reasons the complainant is not entitled to the relief which she seeks. Bill dismissed, with costs.
(District Oourt, S. D. Ohio.
April 7, 188.1.)
ST. § 824.-JURY TRIAL. In a case which had been twice tried to a jury and the jury had each time disagreed, and at a subsequent term the case was dismissed, held, '. that under section 824 of the Revised Statutes, an attorney's docket fee of only five dollars is taxable.
The ·qrial before a jury," in said section, applies only to cases in which a controvcrsy is tcrminated by a verdict of a jury and a judgmcnt thcreon.
COSTS-ATTORNEY'B DOCKET FEE......;.}mv.
2. SAME-" TRIAL BEFORE A JURY"-OONSTRUCTION.
Motion to Retax Costs. Bateman cf; Harper,for motion. J. F. Follett and Thos. Millikin, contra. SWING, D.J. Peter Schwab was adjudicated a bankrupt, aud plaintiff was appointed his assignee; and brought this suit to recover from the defendant assets1bf the estate of the bankrupt. In 1874 the case was submitted toa jury, which failed to agree and was discharged. In 1875 the case'was again submitted to a jury, which, also failing to agtee, was discharged; and in 1880 the p1aintiff came and dismissed his case. Upon such dismissal the costs were taxed against the plaintiff, including a docket fee of $20,
.Reported by MCdSrs. Florien Giauque and J. C. nati hal'. of the
STRAFER VJ CARR.
which the plaintiff objects to, and files this motion to retal. the .costs as to that particular item. The plaintiff claims that bytl1eJaws of the United States there should have been taxed a docket fee of fivedollars.instead of twenty. Whether the docket fee shall be Ave or. twenty dollars depends upon the construction of section 824 ,of the U. S. Revised Statutes. This section provides, other fees of attorney, that there shall be, "on a trial before a jury in civil or criminal caliaes, or before referees, or on a final hearing in equity or admiralty, a doc,ket fee of $20, providing that in cases of and maritime jurisdiction, where the libellant less than $50, the docket fee of his proctor shall be bu' $10; in cases at law where judgment is rendered without a jury, $10; in cases at law where the cause is discontinueil,$5." These are the only provisions of law which bear upon the question. presented,. and its determination depends .upon thecoilstiuction which shall be given to them. , Tbe defendant claiinsthat when a jury has been empanneIled and the case fully submitted to it for determination, it is a "trial before a jury" within the letter and spirit of the law, although they may be unable to agree and shall be discharged. But the plaintiff claiJp.s that such a trial is not a "trial before law, but in order to bring it .within the provisions ()f the law it must have been So trial which resulted in a 'verdict by which the rights of· the, parties should be··determined.. Theuther provisions by which docket fees are given are only upon the existence of. the. of. In equity and :admiralty it is 'npDnI tihe final he/lfrin[ji incases at law where judgment is rendered without a jdry; and in cases at'i where the cause is I' know it maybe said that the purpose of the law was to give a docket fee in proportion to the labor performed, and in this view it was as much a "trial before a jury" as if they had agreed; but so it may be said there might have a pearing in equity which involved more labor than the' frilli.l hearing, but it is only upon afinal hearing that a docket fee is to be taxed. In a general sense it may be true that:therehad been a "trial
" ... ' · '.' ;.,. ,'. · < · . '
before a jury" when the jury had been sworn and the cause fully submitted to it, although they had disagreed and were discharged. But if this is to be the sense in which it is to be construed, then each time the cause was submited to a jury and they failed to agree, would be a "trial before a jury," and a docket fee might be taxed. I do not think that this was the sense of "trial before a jury" contemplated by the statute. I think it was intended to apply only to such cases in which the controversy was disposed of by the verdict of a jury and judgment was rendered thereon; but if a jury disagreed and were discharged, the case remained in all respects as if the matter had never been submitted to a jury. No trial had been had, and the plaintiff could come into court and discontinue his cause; and if he did so, in the taxation of a docket fee, the case must be treated as discontinued, and a docket fee of five dollars only should be taxed. The, Illotion must, therefore, be sustained, and the clerk in the retaxation will tax a docket fee of five, dollars instead of twenty,
(OweuilOO'Url, W. D. Wisconsin. April 5, '1881.)
1. Eq.UITAlJLE RELIEF7-E'RAUDULlllNT PRBFBRENOlil-CoKTI1'fGDT
payment of a note before maturity, at the request and for the benefit of the indorser, laa proper subject for equitable reUef in a bill to charge the indorser.
2. SAME-SOOPE OF REMEDY. ,
The fraudulent appropriation of the assets of a bankrupt to the
Where there are such grounds for equitable relief as to part of the substantial matters set out in the bill, equity will take cognizance of the whole. FRAUDULENT PREFERENCE-REV. ST. f 5128. Such appropriation for the benefit of the Indorsee constitutes a preference within the meaning of section 5128 of the Revised Statutes.-[ED.