¶1Costs (§ 32*) — In Equity — Award Against Prevailing Party.
¶2Costs will seldom be awarded against, the prevailing party in equity, unless he lias been guilty of some fault or omission.
¶3[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 108-132; Dec. Dig. & 32.*]
¶4*274Appeal from the District Court of the United States for the Northern District of New York.
¶5Suit in equity by Susan S. C. Higgins against Harvey E. Eaton, as executor of the will of Elizabeth S. Eaton, deceased. Decree for complainant on defendant’s appeal was reversed. 202 Fed. 75. On petition for rehearing.
¶6Denied.
¶7Martin & Jones, of Utica, N. Y. (A. F. & E. M. Freeman and B. M. Thompson, all of Ann Arbor, Mich., and Ralph Phelps, Jr., and Orla B. Taylor, both of Detroit, Mich., of counsel), for complainant.’
¶8Before EACOMBE, COXE, and NOYES, Circuit Judges.
¶11In view of the fact that on account of our former decision the principal questions discussed in our recent opinion were not fully presented upon the argument of the appeal, we have taken up all the questions anew, and have carefully considered them in the light of the very able briefs presented in behalf of the petitioner upon this application. As a result, however, of such consideration, a majority of the court are confirmed in the views expressed in our recent opinion, and are constrained to deny the petition for a rehearing. It would serve no useful purpose to state again our conclusions.
¶12With respect to costs: Under the circumstances of the case we thought it equitable that no costs should be awarded against the complainant, either in this court or in the court below. But it is a different proposition to go further and award costs in her favor against the defendant. Costs can seldom be awarded against a prevailing party, unless he has been guilty of some fault or omission, and nothing is chargeable against this defendant. Nor can costs be awarded in favor of the complainant, upon theory that there is a fund in court.
¶13The petition for a rehearing is denied.