against the United States, in the examination of any criminal case before a commissioner of a circuit court, unless their materiality and importance are first approved and certified to by the district attorney for the district in which the examination is had; and such taxation shall be subject to revision, as in other cases.

R. S. § 981, U. S. Comp. Stat. 1901, p. 705.

The section was originally enacted in 1856.4

§ 1838. Attorney liable for costs vexatiously increased.

If any attorney, proctor, or other person admitted to conduct causes in any court of the United States, or of any Territory, appears to have multiplied the proceedings in any cause before such court, so as to increase costs unreasonably and vexatiously, he shall be required, by order of the court, to satisfy any excess of costs so increased.

R. S. § 982, U. S. Comp. Stat. 1901, p. 706.

§ 1839. Bill of costs how taxed.

The bill of fees of the clerk, marshal, and attorney, [al and the amount paid printers[b] and witnesses, [e] and lawful fees for exemplifications and copies of papers necessarily obtained for use on trials in cases whereby law costs are recoverable in favor of the prevailing party,[el shall be taxed by a judge or clerk of the court, and be included in and form a portion of a judgment or decree against the losing party.[1]-[8] Such taxed bills shall be filed with the papers in the cause.

R. S. § 983, U. S. Comp. Stat. 1901, p. 706.

[a] Fees of clerks, marshals, etc.

The fees of the clerks, marshals, commissioners and proctors have been held to be their individual property and not that of the parties to the cause wherein they have been earned.9 A sheriff's charge for serving subpoenas cannot be taxed unless it appears that he was acting for the marshal.10

[b] Printing expenses taxable as costs.

Since the expense of printing a brief is nowhere made by statute a part of the taxable costs, it was not allowed in the third circuit there being no

4 Act Aug. 16, 1856, c. 124, § 3, 11 Stat. 49.

9 Aiken v. Smith, 57 Fed. 425, 6 C.

C. A. 414; but see Celluloid Mfg. Co. v. Chandler, 27 Fed. 9.

10 St. Matthews, etc. Bank v. Fidelity, etc. Co. 105 Fed. 161.

rule or practice in that circuit permitting it.11 So also in the ninth circuit costs of printing briefs were held not taxable there being no rule requiring them to be printed.12 Likewise the cost of printing a bill, answer and testimony was held not taxable where no rule of court authorized it, the court refusing even to enforce an agreement between the attorneys relating to such charge.13 But where the record in a cause was printed by order of the court so that copies thereof could be used on appeal and they were so used without any further expense the costs of the printing was held to be taxable in favor of the party obtaining a decree for costs.14 By an act of 187715 costs of printing records in the Supreme Court and in the Court of Claims are to be paid by the losing party.16 Disbursements by counsel or parties for printing briefs on appeal to the Supreme Court cannot be allowed as costs.17

[c] amount paid witnesses taxable as costs.

Under this section the prevailing party can never recover more than the amount actually paid the witnesses.1 And even this amount cannot be recovered if in any instance it exceeds the legal fees due the witnesses.2 Where witnesses are paid in one or more cases and not in others there is a strong presumption that they are not to be paid in the latter case especially where there is some lapse of time between the rendition of service and the taxation and their unpaid fees are prima facie not taxable in such cases.3

[d] What transcripts and copies taxable.

Where the copy or transcript is simply used for convenience of the counsel and is not necessarily used on trial it is not taxable against the other party as costs.5 Thus the transcript of the evidence for the personal use of counsel in preparing a case for the appellate court has been held non-taxable. However copies of an answer in equity required by the rules of the court to be furnished are taxable, as are notarial protest

11Luxfer, etc. Co. v. Elkins, 99 Fed. 29; and see Kelly v. Sprigfield R. Co. 83 Fed. 183.

2 Burrow v. Kansas, etc. R. Co. 54 Fed. 280.

3 Wooster v. Handy, 23 Fed. 49, 23

12Gird v. California Oil Co. 60 Blatchf. 112. Fed. 1011.

13 Lee v. Simpson, 42 Fed. 434. 14 Ferguson v. Dent, 46 Fed. 88. 15 See post, § 1849.

16 Railroad Co. v. Collector, 96 U. S. 594, 24 L. ed. 825.

17Ex parte Hughes, 114 U. S. 548, 29 L. ed. 281, 5 Sup. Ct. Rep. 1008.

1 Burrow v. Kansas, etc. R. Co. 54 Fed. 280; O'Neil v. Kansas, etc. R. Co. 31 Fed. 663; Beckwith v. Easton, 4 Ben. 358, Fed. Cas. No. 1,212; The Highlander, 19 How. Pr. 334; Wooster v. Handy, 23 Fed. 49, 23 Blatchf. 112.

5 The William Branfoot, 52 Fed. 395, 3 C. C. A. 155; Kaempfer v. Taylor, 78 Fed. 795; see also Gunther v. Liverpool, etc. Ins. Co. 10 Fed. 830, 20 Blatchf. 390; Kelly v. Springfield. R. Co. 83 Fed. 183; Monahan v. Godkin, 100 Fed. 196; Wooster v. Handy, 23 Fed. 49, 23 Blatchf. 112.

6 Pine River, etc. Co. v. United States, 186 U. S. 297, 46 L. ed. 1172, 22 Sup. Ct. Rep. 920.

7 Yale Lock, etc. Co. v. Colvin, 14 Fed. 269, 21 Blatchf. 168.

fees in a suit upon a note. But copies of deeds and records which are but muniments of the party's title are held not taxable on the ground that such party is presumed to have such papers in his possession or to be able to obtain them from his predecessors in title.9 On the other hand transcripts which show a want of title in the other party are held to be taxable.10

It has been held that the language of the statute implies that the copies must actually have been used on or in the trial or final hearing or at least have been obtained for such use under a rule or an order or a stipulation.11 Hence in a patent infringement suit, dismissed on plaintiff's motion with the usual costs to the defendant, it was held that six certified copies of patents procured by the defendant to enable him to properly present his defense, could not be included in the costs, not having been used in the trial, or obtained under a rule, order or stipulation.12

[e] Prevailing party.

It is the general rule in civil cases at least that where the United States is a prevailing party, the same costs may be recovered as in the case of a private individual.15

[f] Costs to be included in decree or judgment against losing party.

Except in the few instances otherwise provided by statute, the prevailing party in an action at law, is entitled to his costs as a matter of right.18 In equity and admiralty however the award of costs is largely a matter of discretion.19 So where a libellant makes misstatements thereby causing extra expense in the taking of testimony, though successful, he should be held liable for the extra expense incurred. 20 Likewise in an equity suit where a successful party has called an unnecessary number of witnesses he can recover costs and fees only as to such number as was reasonable.1 In equity suits costs of travel and attendance may be taxed in favor of the successful party.2 Costs on reversal and affirmance and dismissal are considered in following sections.3

[g] Review of trial court's decision as to costs.

Since the successful party in an action at law is generally entitled to costs as of right, a judgment rendered on dismissal denying such right is

8 Baker v. Howell, 44 Fed. 113.

9 Ford v. Louisville, etc. R. Co. 45 Fed. 210.

10 Idem.

11 Wooster v. Handy, 23 Fed. 60. 12 Ryan v. Gould, 32 Fed. 754. 15 Pine River, etc. Co. v. U. S. 186 U. S. 296, 46 L. ed. 1172, 22 Sup. Ct. Rep. 920; and see United States v. Sanborn, 135 U. S. 281, 34 L. ed. 115, 10 Sup. Ct. Rep. 812; United States v. Davis, 54 Fed. 147, 4 C. C. A. 251. 18 Western Coal, etc. Co. v. Petty, 132 Fed. 606, 65 C. C. A. 667.

19 Ibid.

20The Elton, 135 Fed. 446.

1 Kane v. Luckman, 131 Fed. 609; see also Terry v. Naylor, 125 Fed. 804; and see Royal, etc. Co. v. Art Metal Works, 130 Fed. 779, 66 C. C. A. 88, as to apportionment of costs where irrelevant and immaterial questions were asked by both attorneys.

2 Waterman Co. v. Lockwood, 128 Fed. 174.

3 Post, §§ 1845, 1844, 1843.

reviewable by writ of error.5 In equity and admiralty however the awarding of costs is largely a matter of discretion and the general rule in such cases is a decree for costs alone is not reviewable.6 Where, however, the decree complained of involves the construction and application of a positive statute involving the allowance of any costs at all an appeal has been allowed.7

§ 1840. Bill of costs to be sworn to.

Before any bill of costs shall be taxed by any judge or other officer, or allowed by any officer of the treasury, in favor of clerks, marshals, commissioners, or district attorneys, the party claiming such bill shall prove by his own oath, or that of some other person having a knowledge of the facts, to be attached to such bill, and filed therewith, that the services charged therein have been actually and necessarily performed, as therein stated.

This section applies not merely to government cases, but to all cases and to all bills of costs.11 It does not require affidavits that the witness fees have been paid.12

§ 1841. Costs in State court taxable after removal.

Upon removal of a cause from a State to a Federal court the cause proceeds as if originally there instituted,14 and costs which have accrued in the former may be taxed under a final judgment in the latter court.

Author's section.

Costs accrued in the State court prior to a removal of the cause to the Federal court are taxable under final judgment in the latter court.15 But it has been held in the second circuit that such accrued costs are not thus taxable unless they are within the contemplation of R. S. §§ 823 and 824.16

5 Western Coal Co. v. Petty, 132 Fed. 606, 65 C. C. A. 667.

6Canter v. Insurance Co. 3 Pet. 307, 7 L. ed. 688; Russell v. Farley, 105 U. S. 437, 26 L. ed. 1060; Paper Bag Cases, 105 U. S. 772, 26 L. ed. 959; City National Bank v. Hunter, 152 U. S. 516, 38 L. ed. 534, 14 Sup. Ct. Rep. 675; Du Bois v. Kirk, 158 U. S. 58, 39 L. ed. 895, 15 Sup. Ct. Rep. 729; Clarke v. Warehouse Co. 62 Fed. 328, 10 C. C. A. 387; see, ho Never The City of Augusta, 80 Fel. 304, 25 C. C. A. 430, allowing ad niralty appeal as to costs alone. Fed. Proc.-93.

7In re Michigan Cent. R. Co. 124 Fed. 733, 59 C. C. A. 643.

11 Jerman v. Stewart, 12 Fed. 271. 12Chiatovich v. Hanchett, 93 Fed.

727.

14 Ante, § 1157.

15 Cleaver v. Traders' Ins. Co. 40 Fed. 863; Wolf v. Connecticut, etc. Ins. Co. 1 Flipp. 377, Fed. Cas. No. 17,924; Gunther v. Liverpool, etc. Ins. Co. 10 Fed. 830. 20 Blatchf, 390; see also National Steamship Co. v. Tugman, 67 Fed. 16.

16 Chadbourne v. German, etc. Ins. Co. 31 Fed. 625, 24 Blatehf. 539; 1473

Witness fees for witnesses subpoenaed in the State court after the filing of the petition of removal will not be allowed as part of the costs on judgment on removal, but the costs of witnesses attending at the taking of depositions before the removal of the cause are allowable.17

§ 1842. Damages and costs on affirmance in error.

Where, upon a writ of error, judgment is affirmed in the supreme court or a circuit court, the court shall adjudge to the respondents in error just damages for his delay, and single or double costs, at its discretion.

R. S. § 1010, U. S. Comp. Stat. 1901, p. 715.

This section together with subdivision two of rule twenty-three of the Supreme Court rules, 20 takes the place of any State legislation or practice as to the affixing of damages.1 The appellate jurisdiction of the circuit court was abolished in 1891.2 Interest may be recovered as damages for the delay in the affirmance of a judgment where a United States collector is the plainitff in error.3

§ 1843. Costs on dismissal in appellate court.

In all cases where any suit shall be dismissed in this court, except where the dismissal shall be for want of jurisdiction, costs shall be allowed to the defendant in error or appellee, unless otherwise agreed by the parties.

Clause 1 of Supreme Court, rule 24,6 and of rule 31 of circuit courts of appeals in all circuits except eighth.

Costs on dismissal for want of jurisdiction.

This and the following sections set forth the rules of procedure adopted by the Supreme Court as to costs in cases of appeal, no mention being made of the allowance of costs in cases arising in the original jurisdiction of such court. However, the power of the court to award costs to either party in the latter case is undoubted.8

In the eighth circuit the clause excepting cases of dismissal for want of jurisdiction is omitted. It seems the well-established rule that in cases of dismissal for want of jurisdiction, costs are not allowed.10 So where the circuit court has dismissed a bill, with costs, for want of jurisdiction, the Su

20 See post, § 2125.

29

3 Schell v. Cochran, 107 U. S. 625, 27 L. ed. 543, 2 Sup. Ct. Rep. 827.

6 Promulgated Jan. Term, 1838, 12 Pet. VII., revised Dec. term, 1858, 21 How. XIII.

8 Pennsylvania v. Wheeling, etc.

1 Peoples' Bank v. Aetna Ins. Co. Bridge Co. 18 How. 460, 15 L. ed.

76 Fed. 550.

2 See ante, § 77.

449.

10 Burnham v. Rangely, 2 Woodb.