promissory note, the defense of usury is established, the defendant is entitled to recover his costs even though plaintiff has judgment and such recovery applies to costs incurred in the suing out of an attachment in the case. Montgomery v. Albion Nat. Bank, 50 Neb. 652 (70 N. W. 239).

28. (1899.) In a suit on a contract for payment of money, where the defense of usury is established, plaintiff is not entitled to costs on the judgment awarded him. Interstate Savings & Loan Ass'n v. Strine, 58 Neb. 133 (78 N. W. 377).

Effect of offer of judgment.

29. (1879.) An offer to confess judgment duly made in the court where the action is brought, under section 1004 of the code of civil procedure, need not be renewed in the appellate court in order to make it available to the party making it on final judgment. Kleffel v. Bullock, 8 Neb. 336; (1887) Underhill v. Shea, 21 Neb. 154 (31 N. W. 510).

30. (1886.) In a case pending in the district court an offer made by defendant to allow judgment to be taken by the plaintiff in a certain amount therein stated and costs, which offer was in writing and filed in the office of the clerk of said court, but was not served upon the plaintiff or his attorney, nor was it made in open court, the plaintiff being present or having notice thereof. Held, Unavailing to throw the costs made after the filing of such offer upon the plaintiff. Rose v. Peck, 18 Neb. 529 (26 N. N. 363).

31. (1887.) Where docket of justice shows that prior to trial, defendant offered to confess judgment, which plaintiff refused to accept, there is no presumption that the offer was made in writing; and the decision of the district court to tax costs to plaintiff, for the reason that judgment did not exceed the offer, will not be molested. Underhill v. Shea, 21 Neb. 154 (31 N. W. 510).

32. (1890.) In an action before a justice of the peace, if the defendant before trial offers in writing to allow judgment to be taken against him for a specified sum, and the plaintiff declines to accept the same, and fails to recover a sum equal to the offer, he cannot recover costs made after the offer. Elsanger v. Grovijohn, 29 Neb. 139 (45 N. W. 273).

33. (1896.) Section 565 of the code of civil procedure, providing that a defendant

may serve on the plaintiff, or his attorney, an offer in writing to allow judgment to be taken against him for a specified sum, and that if such offer be not accepted, and the plaintiff fails to obtain judgment for more than the offer, he shall pay defendant's costs from the time of the offer, contemplates that where there is only one defendant, all costs from the time of the of fer shall in such case be taxed against plaintiff. Wachsmuth v. Orient Ins. Co., 49 Neb. 590 (68 N. W. 935).

34. (1898.) An offer to confess judg ment duly made in a cause pending before a justice of the peace need not be renewed in the appellate court to make the provisions of said section 1004 of the code available to the defendant on final judg ment. Flower v. Nichols, 55 Neb. 314 (75 N. W. 864).

35. (1898.) In an action before a justice of the peace, where the defendant before trial offers in writing to allow judgment to be taken against him for a specified sum, and the plaintiff declines to accept the same, and fails to recover a sum equal to the offer, he is not entitled, under section 1004 of the code of civil procedure, to recover costs subsequently made, but the same should be adjudged against him. Flower v. Nichols, 55 Neb. 314 (75 N. W. 864).

36. (1907.) An acceptance of an offer to allow judgment for a specified sum, coupled with the condition that the judg ment shall include costs, is an acceptance of the offer according to its legal effect, and entitled the plaintiff to judgment for the amount offered, and costs, without further litigation. Palmer v. Stiles, 78 Neb. 362 (110 N. W. 1004).

37. (1907.) Where an acceptance of an offer to allow judgment in a specified sum is coupled with a condition that the judg ment shall include costs, and is rejected by the defendant, his rejection thereof amounts to a withdrawal of his offer, and leaves the parties standing, with respect to costs, as though the offer had not been made. Palmer v. Stiles, 78 Neb. 362 (110 N. W. 1004).

38. (1907.) Section 1004 of the code. which provides that, in an action brought before a justice of the peace, if the defendant, at any time before trial, offer to allow judgment to be taken against him for a specified sum, and the plaintiff reject such offer and fail to recover a sum equal to the offer, he cannot recover costs subsequently

accruing, contemplates an offer made in terms that, when accepted as made, entitles the plaintiff to judgment therefor, and costs, without further litigation. Palmer v. Stiles, 78 Neb. 362 (110 N. W. 1004).

Effect of reversal of judgment.

39. (1885.) Where upon a new trial being granted the plaintiff was permitted to amend his petition by stating more fully a cause of action arising on his contract, not a new cause of action, an order requiring him to pay only a part of the costs then accrued would not be set aside. Wallingford, Shamp & Co. v. Burr, 17 Neb. 137 (22 N. W. 350).

40. (1901.) Where a decree was rendered denying one of the litigants any relief and taxing him with half the costs, and it was reversed, it also reversed the decree as to costs. Olson v. Lamb, 61 Neb. 484 (85 N. W. 397).

Condition to granting continuance.

41. (1879.) Under the act of February 25, 1875, the court may require the party moving for a continuance to pay a sum not exceeding $10 as costs. Smith v. Silvis, 8

45. (1902.) Since no costs of any kind can be taxed in a case unless the statute makes provision therefor, the legislature may, in providing for the taxation of witness fees and other costs, make a condition that such fees and costs shall be called for within a certain specified time, in default of which they shall be paid into the county treasury for the benefit of the school fund. Douglas County v. Moores, 66 Neb. 284 (92 N. W. 199).

II. PERSONS ENTITLED. Defendant disclaiming interest.

46. (1897.) "Where defendants disclaim having any title or interest in land or other property the subject matter of the action, they shall recover costs, unless for special reasons the court decides otherwise," is declaratory merely of the rule in equity, since the discretion reserved to the court implies a determination from an inspection of the pleadings of defendant's right to be dismissed from the action. Fowler v. Brown, 51 Neb. 414 (71 N. W. 54).

III. PERSONS LIABLE. Liability of infant for costs, see Infants, §§ 64-66.

Incompetent persons.

47. (1879.) The action of an infant must be brought by his guardian or next friend, who alone is liable for the costs. The infant is not liable to a judgment therefor. Kleffel v. Bullock, 8 Neb. 336.

48. (1879.) An infant is not liable to a judgment for costs after arriving at full age, in an action brought without a guardian or next friend, but not terminated during infancy, if on reaching majority at the first opportunity, he disclaims all benefit from the proceeding, and refuses to proceed further. Kleffel v. Bullock, 8 Neb. 336.

49. (1887.) Where an action was brought against certain minor heirs and others to quiet the title of real estate in the plaintiff, the principal object of the action being to divest the title of the minor heirs, as such minor heirs were unable to convey by deed, they should not be taxed with the costs of the action, and the relief will be granted to the plaintiff upon the payment of all costs. Clark v. Clark, 21 Neb. 402 (32 N. W. 157).

Official or representative capacity of party.

50. (1901.) A constable who in good faith levies an execution on personal prop

erty in the possession of the execution defendant, without knowledge or notice that such property belongs to a third person, cannot be made liable for the costs in an action of replevin brought by the owner to recover possession, unless a demand has been made for the surrender of the possession before the commencement of the action. Littlefield v. Wilson, 1 Unof. 581 (95 N. W. 677).

On intervention.

51. (1892.) An intervener cannot, in any event, be taxed with costs which accrued prior to the intervention. Railsback, Mitchell & Co. v. Patton, 34 Neb. 490 (52 N. W. 277).

IV. SECURITY FOR PAYMENT. In criminal prosecutions, see post, §§ 152, 153.

Want of security for costs, as grounds for dismissal, see Dismissal and Nonsuit, §§ 57, 58.

Necessity.

52. (1881.) When an action is brought by partners in their firm name. the statute requires them to give security for costs. Haskins v. Citizens Bank, 12 Neb. 39 (10 N. W. 466).

53. (1882.) The plaintiff in an action, and also the defendant, is primarily liable for all costs which he makes, and their payment or security may be required in advance. Nor does the fact that his adversary may ultimately be compelled to pay them by the judgment of the court, relieve him from such liability to the officer entitled thereto. Sechler v. Stark, 12 Neb. 242 (11 N. W. 320).

54. (1895.) Prejudice does not result from an order overruling a motion to require plaintiff to give additional security, where a valid judgment including costs goes against defendant. Watson v. Roode, 43 Neb, 348 (61 N. W. 625).

the order. Elliott v. Carter White-Lead Co., 53 Neb. 458 (73 N. W. 948).

57. (1898.) Under facts stated in opinion an order overruling a motion to require a cross-petitioner to give security for costs, held not erroneous. Moss v. Robertson, 56 Neb. 774 (77 N. W. 403).

Waiver.

58. (1881.) The requirement of security for costs, being for the benefit of defendant, may be waived by him, and he does waive it by failing properly to insist upon its being given. Haskins v. Citizens Bank, 12 Neb. 39 (10 N. W. 466).

Bond or undertaking.

59. (1901.) There is no substantial dif ference between "a bond for costs" and "an undertaking for costs." Each expression is the recognized equivalent of the other. McPherson v. Commercial Nat. Bank, 61 Neb. 695 (85 N. W. 895).

60. (1901.) An undertaking for costs is enforceable although no obligee is named therein. McPherson v. Commercial Nat. Bank, 61 Neb. 695 (85 N. W. 895). Summary remedies against sureties.

61. (1902.) The provisions of sections 612 to 616 of the code of civil procedure, and especially of the latter section, do not authorize by summary proceedings the entry of a judgment for costs against sureties on a cost bond which is required to be given by the plaintiff in error or appellant under rule 12 adopted by the supreme court, with reference to security for costs in actions brought here on error or by appeal. Dunn v. Bozarth, 64 Neb. 862 (90 N. W. 954).

62. (1902.) The court is not authorized by the issuance of a writ of scire facias, or on a motion and notice to the adverse party in lieu thereof, to order an execution to issue against sureties on a cost bond, given in pursuance of the provisions of supreme court rule 12, for the costs made in the action in which the cost bond was given, and which are assessed against a plaintif in error or appellant, or for the amount thereof remaining unpaid. Dunn v. Bozarth, 64 Neb. 862 (90 N. W. 954).

Action on bond or undertaking.

63. (1902.) The right to enforce the lia bility of a surety on a cost bond given in pursuance of supreme court rule 12, is by proceeding in an ordinary civil action on the undertaking and in pursuance of the rules governing civil actions generally.

Dunn v. Bozarth, 64 Neb. 862 (90 N. W. 954).

V. AMOUNT, RATE AND ITEMS.

In general.

64. (1906.) Nothing can be taxed as costs in an action except such items as are prescribed by statute or are expressly authorized by the consent or agreement of the parties. Langan v. Whalen, 77 Neb. 658 (110 N. W. 668).

C5. (1906.) Where a new trial is granted for the reason that a correct transcript to perfect an appeal was not obtainable for the reason that the official reporter had absconded, the costs of an attempt to procure such transcript is not taxable in the second trial. Langan v. Whalen, 77 Neb. 658 (110 N. W. 668).

Attorneys' fees.

an

allowance

is

Where 66. (1875.) made for an attorney's fee, as provided by section 23, General Statutes, the amount thereof should be specifically stated and kept distinct from the amount of the judgment Rich v. proper. Stretch, 4 Neb. 186. [Changed by statute. Hardy v. Miller, 11 Neb. 395.]

67. (1877.) When the instrument sued on provides for an attorney's fee, the allowance of the fee is no part of the judgment for the debt itself, but it is taxed as costs, and is subject to exceptions and review in like manner as the taxation other costs may be. Hendrix v. Rieman, 6 Neb. 516.

of

68. (1878.) Attorneys' fees are in the nature of costs and are to be taxed as such. Rosa v. Doggett, 8 Neb. 48.

69. (1878.) No attorneys' fees can be allowed except in cases where a judgment has been recovered, and only in cases where the instrument upon which the action is brought in express terms provides for their allowance. And in no case can such fee be recovered unless it is allowed by the court. Rosa v. Doggett, 8 Neb. 48. [Changed by statute. Hardy v. Miller, 11 Neb. 395.]

70. (1881.) There is no authority to allow attorney fees in actions founded on instruments executed since June 1, 1879. Hardy v. Miller, 11 Neb. 395 (9 N. W. 475); Dow v. Updike, 11 Neb. 95 (7 N. W. 857).

71. (1881.) The repeal of the act allowing attorney's fees on foreclosure, did not affect a contract entered into while the act

was in force. White v. Rourke, 11 Neb. 519 (9 N. W. 689).

72. (1884.) If an allowance of attorneys' fees is made, the record should show the fact, and it should be kept entirely distinct from the judgment proper. It is considered in the nature of costs, and should be treated as such. Aultman & Co. v. Stout, 15 Neb. 586 (19 N. W. 464).

73. (1884.) In the absence of a statute authorizing it, there is no authority in this state to allow an attorney's fee, and tax the same as costs in the action. Otoe County v. Brown, 16 Neb. 394 (20 N. W. 274).

74. (1884.) There is no statute in this state authorizing the taxation of attorney's fee as part of the costs in an action by county commissioners to foreclose a tax lien. Otoe County v. Brown, 16 Neb. 398 (20 N. W. 641).

(1885.)

75. Where a note was executed prior to the taking effect of act of February 24, 1879, a provision for attorneys' fees therein may be enforced. Bond v. Dolby, 17 Neb. 491 (23 N. W. 351).

76. (1886.) Under a statute which authorizes the allowance of an attorney's fee in certain cases, proportioned to the amount of recovery, the debtor cannot, by paying a considerable portion of the debt immediately proceding the rendition of judgment, defeat the recovery by the attorney of fees upon the entire sum for which, but for the payment, judgment would have been rendered. Hand v. Phillips, 18 Neb. 593 (26 N. W. 388; 54 Am. Rep. 824).

77. (1886.) An attorney's fee under the act of February 18, 1872, when allowable, should "be fixed" and allowed by the trial court upon a recovery of judgment by a plaintiff, and when once fixed within the statutory limits the amount thereof will not be changed by the supreme court. Sedgwick v. Dixon, 18 Neb. 545 (26 N. W. 247). [Changed by statute. Hardy v. Miller, 11 Neb. 395.]

78. (1888.) As vindictive damages cannot be recovered in this state, attorney fees are not recoverable in actions of tort, except where specifically provided for by statute. Winkler v. Roeder, 23 Neb. 706 (37 N. W. 607; 8 Am. St. Rep. 155).

79. (1891.) From the earliest history of this state until 1873 attorney fees were not allowed to the plaintiff in any action arising upon contract. In 1873 an act was passed to allow attorney fees not to exceed

ten per cent of the recovery in an action upon a mortgage or promissory note. This act was repealed in 1879, taking effect June 1, 1879, and since that time a court has had no authority to allow attorney fees to the plaintiff in any action upon a promissory note or for the foreclosure of a mortgage. In re Breckinridge, 31 Neb. 489 (48 N. W. 142). 80. (1893.) A provision in a note executed since June 1, 1879, for the payment of attorneys' fees for collection is invalid. Security Co. of Hartford v. Eyer, 36 Neb. 507 (54 N. W. 838; 38 Am. St. Rep. 735).

81. (1893.) In a real estate mortgage foreclosure on property in this state it appeared that a resident of Nebraska executed the note and mortgage and agreed in the note to pay an attorney's fee for collection in case of foreclosure. The payee was a resident of Iowa. The papers were executed and delivered and the money paid to the borrower in this state. The note was payable in New York. The provision for payment of attorney's fee is binding in Iowa. It was stipulated in the note and mortgage that these instruments were made and executed in, and are to be construed by, the laws of Iowa. Held, That the law of the place of the forum governs the application of the remedy, such as the recovery of costs, and that the said provision in the note for attorney's fee, being contrary to the settled law of this state, will not be enforced. Security Co. of Hartford v. Eyer, 36 Neb. 507 (54 N. W. 838; 38 Am. St. Rep. 735).

82. (1894.) The provisions of chapter 48 of the Session Laws of 1889 empowered the courts of this state, upon rendering judgment against an insurance company on any policy of insurance on real property, to allow plaintiff a reasonable sum as an attorney's fee, to be taxed as part of the costs of the case in which judgment is rendered. Hanover Fire Ins. Co. v. Gustin, 40 Neb. 828 (59 N. W. 375).

are

83. (1894.) Where attorneys' fees taxed as costs, it is no objection that they were allowed to the attorneys of record by name. Phoenix Ins. Co. v. Covey, 41 Neb. 724 (60 N. W. 12).

84. (1894.) The taxation of attorneys' fees by a federal court is a matter of which such courts have sole cognizance, and such taxation cannot in the state courts be impeached as being contrary to public policy. Mead v. Weaver, 42 Neb. 149 (60 N. W. 385).

85. (1895.) On the foreclosure of a tax lien, based on a valid tax sale, the court should award the plaintiff an attorney's fee equal to ten per cent of the amount of the decree. Alexander v. Thacker, 43 Neb. 494 (61 N. W. 738).

86. (1897.) Under section 45, chapter 43, Compiled Statutes, the court may, in a suit on a policy covering both realty and personalty, allow a reasonable attorney's fee, based on the amount recovered on account of the realty. Omaha Fire Ins. Co г. Thompson, 50 Neb. 580 (70 N. W. 30).

87. (1897.) Upon review of a judgment for plaintiff in an action on a fire insurance policy covering realty, attorney's fees for services in the supreme court should not be allowed. Home Fire Ins. Co. v. Skoumal. 51 Neb. 655 (71 N. W. 290).

88. (1897.) In an action on a policy for insurance written on real property, the court in rendering judgment against the insurance company may allow the plaintiff a reasonable sum as an attorney's fee, to be taxed as part of the costs. Home Fire Ina. Co. v. Skoumal, 51 Neb. 655 (71 N. W. 290)

89. (1898.) A provision, in a note, for payment of attorney's fees in case suit should be brought against the maker, will not be enforced in Nebraska, though the note was executed and made payable in Iowa where the provision was lawful. Hallam v. Telleren, 55 Neb. 255 (75 N. W. 560).

90. (1898.) Courts cannot award attor ney's fees to an unsuccessful contestant of a will solely because he acted in good faith, and probable cause for the contest existed. Wallace v. Sheldon, 56 Neb. 55 (76 N. W. 418).

91. (1902) The provision of section 3 of the valued policy law (Comp. Stat. 1899, ch. 43, sec. 45), permitting the taxation as costs of a reasonable attorney's fee upon rendering judgment against an insurance company on a contract insuring real estate, is grounded on considerations of public policy, and is constitutional. Farmers & Merchants Ins. Co. v. Dobney, 62 Neb. 213 (86 N. W 1070; 97 Am. St. Rep. 624).

92. (1903.) A recovery of counsel fees for the trial of a case will not be allowed as an element of damages for an injunetion wrongfully obtained if the injunction proceedings be only ancillary to the main case. Barr v. Post, 4 Unof. 32 (93 N. W. 144).