Costs. United States. The United States v. Hooe et al., | diction, it must be without costs. Montalet v. 3 Cranch, 75; 1 Cond. Rep. 458. 4. A judgment for costs, generally, includes all the costs belonging to the suit, whether prior or subsequent to the rendition of the judgment. If new costs accrue, the judgment opens to rePeyton v. Brooke, 3 Cranch, 92; 1 ceive them. Cond. Rep. 464. Murray, 4 Cranch, 46; 2 Cond. Rep. 19. 16. The court below, upon a mandamus, on reversal of its judgment, may award execution for the costs of the appellant in that court. Riddle et al. v. Mandeville et al., 6 Cranch, 86; 2 Cond. Rep. 307. 17. Where the court ordered the costs to be 5. Costs were allowed upon the dismission of paid of a former ejectment brought by the plaina writ of error for want of jurisdiction; the ori-tiffs in the names of other persons, but for their ginal defendant being also defendant in error. Winchester v. Jackson et al., 3 Cranch, 514; 1 Cond. Rep. 612. 6. Where there appeared some ground for the prosecution, costs were refused. The United States v. La Vengeance, 3 Dall. 297; 1 Cond. Rep. 132. 7. Where a writ of error is dismissed in the supreme court for want of jurisdiction, costs are not allowed. Inglee v. Coolidge, 2 Wheat. 363; 4 Cond. Rep. 155. 8. Each party is liable to the clerk of the supreme court for the fees due to him from each party respectively. Caldwell v. Jackson, 7 Cranch, 276; 2 Cond. Rep. 490. 9. A copy of the record is not a part of the taxable costs of suit, to be recovered by one party against the other; but the party who requests the copy, must pay the clerk for it. İbid. use, before the plaintiff could prosecute a second suit in his own name for the same land; this was not a judicial decision that the right of the plaintiffs in the first suit was the same with that of the plaintiffs in the second suit. It was perfectly consistent with the justice of the case, that when the plaintiffs sued the same defendant in their own name for the same land, that they should reimburse him for the past costs to which they had subjected him, before they should be permitted to proceed further. Rules of this kind are granted by the court to meet the justice and exigencies of cases as they occur; not depending solely on the interest which those who are subjected to such rules may have in the subjectmatter of suits which they bring and prosecute in the names of others; but on a variety of circumstances, which, in the exercise of a sound discretion, may furnish a proper ground for their interference. Henderson and Wife v. Griffin, 5 Peters, 151. 10. It is undoubtedly a general rule, that no court can give a direct judgment against the 18. Where several claims had been filed by United States for costs, in a suit to which they the district attorney, and, before any further are a party, either on behalf of any suitor, or any proceedings in the cause, congress remitted the officer of the government. But it by no means forfeiture, on the payment of duties, costs, and follows, from this, that they are not liable for charges: Held, that the district attorney of Mastheir own costs. No direct suit can be main-sachusetts was entitled to seventeen dollars on tained against the United States. But when an each claim. The Frances, 1 Gallis. C. C. R. action is brought by the United States, to recover 453. money in the hands of a party who has a legal 19. In taxing the costs in prize causes, where claim against them for costs, it would be a very there are several claims, some of which are disrigid principle to deny to him the right of set-posed of by a final decree of condemnation, ting up such claim in a court of justice, and turn him round to an application to congress. If the right of the party is fixed by the existing law, there can be no necessity for an application to congress, except for the purpose of remedy. And no such necessity can exist, when this right can properly be set up by way of defence to a suit by the United States. U. S. v. Ringgold et al., 8 Peters, 150. 12. No judgment or decree can be rendered directly against the United States for costs and expenses. The Antelope, 12 Wheat. 546; 6 Cond. Rep. 629. 14. The fees and compensation to the marshal, where the government is a party to the suit, and his fees or compensation are chargeable to the United States, are to be paid out of the treasury, upon a certificate of the amount, to be made by the court, or one of the judges. Ibid. while others are suspended by appeal, the practice is to tax the costs and expenses which have accrued, specially, upon each claim so disposed of, as a separate charge against the same, and to add thereto an average proportion of the general costs and expenses which have accrued in reference to all the claims in the cause. The Hiram and the Hero, 2 Gallis. C. C. R. 60. 20. In prize causes, the allowance or denial of costs rests in the discretion of the court; and where the capture, though made in good faith, is in law adjudged tortious, the claimant is entitled by the general practice of the court to such costs as have necessarily arisen in the prosecution of his claim, unless he has been guilty of such misconduct as amounts to a forfeiture of such costs. The Ulpiano, 1 Mason, 91. 21. When a cause is removed from a state court to the circuit court, under the act of congress, the plaintiff is entitled to recover his costs, although he obtains a verdict for less than five hundred dollars. Ellis v. Jarvis, 3 Mason, 457. 22. If a witness, recognised for the defendant, 15. In cases of reversal, costs do not go of is marked on the indictment, and sent to the course; but in cases of affirmance they do. grand jury by the district attorney, the United When a judgment is reversed, for want of juris-States, on the acquittal of the prisoner, must pay Costs. the witness his costs. United States v. Coulter, | following to give to the clerk the fee bond: on C. C. U. S. of Pennsylvania, April, 1803. the failure so to give the same, the writ of error to be dismissed. Owings v. Tiernan, 10 Peters, 447. 23. It is within the discretion of the court to permit the defendant to file a new plea; but where the effect of it would be to put the plaintiff out of court, and the cause was instituted in consequence of the act of the defendant himself, and had been long at issue before the application was made, the court would not permit it to be done, unless the defendant would pay not only the costs incurred since the filing of his first plea, but the whole costs of the action. Anonymous, 2 Wash. C. C. R. 270. 24. Where the plaintiff prevails in the action, the court will not, in the exercise of their discretion, tax the costs against him, where he might naturally and fairly suppose he was entitled to recover more than five hundred dollars. Cottle v. Payne, 3 Day, 289. 25. Costs and expenses are not matters positively limited by law, but are allowed in the exercise of a sound discretion of the court; and no appeal lies from a mere decree respecting costs and expenses. Canter v. The American and Ocean Insurance Company, 3 Peters, 319. 26. In Virginia, if the first ca. sa. be returned non est, the second may include the costs of issuing both. Peyton v. Brooke, 3 Cranch, 92; 1 Cond. Rep. 464. 27. Costs will be allowed on the dismission of a writ of error for want of jurisdiction, if the original defendant be defendant in error. Winchester v. Jackson et al., 3 Cranch, 515; 1 Cond. Rep. 612. 28. A party who obtains a continuance of a cause, must pay the costs of the term. Lessee of Patton v. Blackwell, 2 Overt. Rep. 114. 29. The supreme court has no jurisdiction in a case in which the judges of the circuit court have divided in opinion, upon a motion for a rule to show cause why the taxation of the costs of the marshal on an execution should not be reversed. Bank of the United States v. Green and others, 6 Peters, 26. 30. The transcript of the record had been lodged by the plaintiffs in error with the clerk of the court on the 24th of October, 1835; who refused to file it or docket the cause, until the plaintiffs had given the fee bond, in pursuance of the thirty-seventh rule of the court. The counsel for the plaintiffs in error moved to have the transcript filed and docketed, alleging they had done all the law required to be done in order to bring the case before the supreme court. On the part of the defendant in error, his counsel filed and read in open court certified copies of the writ of error, citation, and appeal bond, and of the judgment of the circuit court; and having stated that the plaintiffs in error had failed to have the case docketed according to the thirtieth rule of the court, they moved to have the case docketed and dismissed. The court overruled the motion to docket and dismiss the cause, and also the motion to have the transcript filed, and the cause docketed without the fee bond being first given. These motions were overruled on the 18th of January, 1836, and the court allowed the plaintiffs in error until the 1st day of March 31. If the court had jurisdiction of the cause when the action was commenced, the repeal of the law which gave the jurisdiction will not take away the plaintiff's right to costs. Walker v. Smith, 1 Wash. C. C. R. 202. 32. Where three members of the bar enter their appearance for the defendant, to suits instituted against him, and are all equally called upon, and act as the attorneys of the defendant, no warrant of attorney having been given by the defendant to either, the attorneys' fee in the bill of costs is to be equally divided among all who have acted in the case, and who have appeared to the suits. Hurst v. Durnell, 1 Wash. C. C. R. 438. 33. Query, If, in an action for the violation of a patent, the plaintiff recover five hundred dollars damages, or the damages when trebled amount to that sum, the plaintiff is at all entitled to costs. Kneass v. The Schuylkill Bank, 4 Wash. C. C. R. 106. 34. The common law gave costs in no case; and the statute of Gloucester gave them only where damages were recoverable at common law. Ibid. 35. If the defendant do not demand security for costs within a reasonable time, it shall not be a ground for a continuance, that such security has not been given when the cause is called for trial. Hawkins v. Wiltbank, 4 Wash. C. C. R. 285. 36. The clerk of the circuit court for the district of Pennsylvania, cannot charge in the bill of costs any compensation for the travel and attendance of the successful party, none such being allowed in the supreme court of the state. But he ought to tax one dollar and twenty-five cents a day for the attendance of each witness, and five cents a mile for their travelling to and from the court. Sebring's Lessee v. Ward, 4 Wash. C. C. R. 546. 37. Costs are imposed on a party asking for an amendment of the pleadings. But in a case where, from the irregularity of the practice in the courts of Pennsylvania, the error requiring amendment arose, costs were not allowed. Lessee of Laning v. Dolph, 4 Wash. C. C. R. 630. 38. The plaintiff having recovered at law, the court directed the costs of the bill of discovery, by which the plaintiffs at law were prevented recovering, should be paid by the defendants in the bill, they being plaintiffs at law. Lessee of Bowne v. Brown et al., 2 Wash. C. C. R. 271. 39. The clerk of the court is a competent judge of the amount of costs which can be recovered in an action; and money paid to him, is in the safe keeping of the court, and subject to its disposal. Willings et al. v. Consequa, 1 Peters' C. C. R. 301. 40. In a case of tort, several costs of travel, attendance, and attorney's fees, will be allowed to the several defendants, whether the pleadings are joint or several. Crosby v. Folger, 1 Sum. ner's Rep. 514. 41. In case of a claim on proceeds in the cus Supreme Court, January Term, 1838.-Courts. tody of the court, where other parties are entitled, no costs can be allowed beyond those for which there is a specific lien, and the actual charges of court. No attorney's fees can be allowed. The Jerusalem, 2 Gallis. 345. 42. Query, If a consul, who sues for a penalty in his own name and person, but for the benefit of the United States, is liable for costs? Levy v. Burley, 2 Sumner's C. C. R. 355. General Principles. In all cases of affirmances of any judgment or decree in the supreme court, costs shall be allowed to the defendant in error, or appellee, as the case may be, unless otherwise ordered by the court. In all cases of reversals of any judgment of | decree in the supreme court, except where the reversal shall be for want of jurisdiction, costs shall be allowed in the supreme court for the 43. After notice of trial, the defendant cannot plaintiff in error, or appellant, as the case may move to put off the trial, until the costs of a be, unless otherwise ordered by the court. former ejectment be paid, without notice that Neither of the foregoing rules shall apply to such a motion would be made; nor can it pre-cases where the United States are a party; but vail under any circumstances, if the cost be de-in such cases no costs shall be allowed in the manded on an ejectment which had been de- supreme court for or against the United States. cided in the state court. Den v. Bacon & Sharp, When costs are allowed in the supreme court, 4 Wash. C. C. R. 578. it shall be the duty of the clerk to insert the amount thereof in the body of the mandate, or other proper process, sent to the court below, and annex to the same the bill of items taxed in detail. 44. In an action for the violation of a patentright, the plaintiff having recovered a verdict for three cents damages, is not entitled to full costs under the twentieth section of the judiciary act of September 24th, 1789, ch. 20. Kneas v. The Schuylkill Bank, 4 Wash. C. C. R. 100. 45. Where the plaintiff, being a non-resident, has filed security for costs, conditioned to pay them, "if the plaintiff does not prosecute his suit to effect, and does not pay the costs of the suit," in case the plaintiff succeeds, the sureties are exonerated from the payment of any costs; but the plaintiff is responsible to the officers of the court for his own costs, and the court will enforce the payment of them by attachment. Lessee of Bowne v. Arbuncle, 1 Peter's C. C. R. 234. 46. The rule as to costs has been established by the forty-seventh rule of this court, 8 Peters' Reports. In all cases of reversal of any judgment or decree in the supreme court, except where the reversal shall be for want of jurisdiction, costs shall be allowed for the plaintiffs in error or appellants, as the case may be, unless otherwise ordered by the court. Bradstreet v. Potter, 16 Peters, 317. 47. Costs in the admiralty are in the sound discretion of the court, and no appellate court should ordinarily interfere with that discretion, unless under peculiar circumstances. The United States v. Brig Malek Adhel, 2 Howard, 237. 48. Where a survey was ordered by the court, it was held, that the expenses thereof, were borne equally by both parties, since it was for their mutual benefit. Whipple v. Cumberland Cotton Co., 3 Story's C. C. R. 84. 49. It is the common practice not to allow costs to the prevailing party, where the district judge differs from the circuit judge. Veazie v. Williams, 3 Story's C. C. R. 612. SUPREME COURT, JANUARY TERM, 1838. Rule of Court No. 44. In all cases, where any suit shall be dismissed in the supreme court, except where the dismissal shall be for want of jurisdiction, costs shall be allowed for the defendant in error, or appellee, as the case may be, unless otherwise agreed by the parties. 1. The distribution of the appropriate exercise of the judicial power must be made by laws passed by congress, and cannot be assumed by any other department; else, that power being concurrent in the legislative and judicial departments, a conflict between them would be probable, if not unavoidable, under a constitution of government which made it the duty of the judicial power to decide all cases in law or equity arising under it, or laws passed, and treaties made, by its authority. The State of Rhode Island v. The State of Massachusetts, 12 Peters, 300. 2. In the case of Grayson v. The State of Virginia, a bill in equity was filed against the state, and a subpoena was issued, which was returned, served. On a motion for a distringas, to compel the state to enter an appearance, the court said: We collect a general rule for the government of the proceedings of the court, which prescribes an adoption of that practice which is founded on the custom and usage of courts of admiralty and equity, constituted on similar principles; but the courts are authorized to make such deviations as are necessary to adapt the process and rules of the court to the peculiar circumstances of the country, subject to the control of the legislature. Grayson v. The State of Virginia, 3 Dall. 320; 1 Cond. Rep. 141. 3. In this case the court made an order, that where process, at common law or in equity, shall issue against a state, the same shall be served on the governor or chief executive ma General Principles. gistrate, and the attorney-general of the state. | changed the right of property. The power under Ibid. 4. It is, in general, true, that the province of an appellate court is only to inquire whether a judgment, when rendered, was erroneous or not; but if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes, and positively changes the rule which governed in the first decision of the case, the law must be obeyed: and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed without violating the law, the judgment must be set aside by the appellate court. The Peggy, 1 Cranch, 108; 1 Cond. Rep. 256. which it acts must be looked into, and its authority to decide questions which it professes to decide, must be considered. Rose v. Himely, 4 Cranch, 241; 2 Cond. Rep. 98. 14. The court of a foreign nation must judge of its own jurisdiction, so far as depends on municipal rules; and its decision must be respected: but if it exercises a jurisdiction, which, according to the law of nations, its sovereigns could not confer, however available its sentences may be within the dominions of the prince from whom the authority is derived, they are not regarded by foreign courts. Ibid. 15. A ship captured by an armed vessel with5. Congress cannot vest any portion of the ju- in the territorial limits of the government to dicial power of the United States, except in which the captor belongs, for a violation of mucourts ordained and established by itself. Mar-nicipal law, and carried into a neutral port; tin v. Hunter's Lessee, 1 Wheat. 304; 3 Cond. Rep. 578. 6. Appellate courts in admiralty cases, having the whole circumstances before them, may render such decree as the inferior tribunal should have done. Penhallow v. Doane, 3 Dall. 54; 1 Cond. Rep. 21. 7. Under the constitution and laws of the United States, certain implied powers must necessarily result to courts from the nature of their institution. To fine for contempt, imprison for contumacy, enforce the obedience of order, &c., are powers which cannot be dispensed with in a court, because they are necessary to all others; and so far the courts of the United States possess powers, not immediately derived from the judiciary acts. The United States v. Goodwin, 7 Cranch, 108; 2 Cond. Rep. 434. 8. A decree of a competent court of the highest jurisdiction, is final and conclusive. Penhallow v. Doane's Adm'rs, 3 Dall. 54; 1 Cond. Rep. 21. 9. No foreign government can establish a court of judicature within the jurisdiction of the United States, unless authorized by a treaty. Glass v. The Betsey, 3 Dall. 6; 1 Cond. Rep. 10. 10. The trial of prizes taken on the high seas, without the limits and jurisdiction of the United States, a neutral nation, and carried within the limits of the belligerent, by vessels of war belonging to such belligerent, and acting under the same, and of all questions incidental thereto, belong to the tribunals of such belligerent, and to no other tribunal whatsoever. United States v. Peters, 3 Dall. 129; 1 Cond. Rep. 60. 11. An officer of such belligerent vessel of war cannot be arrested or tried in the neutral nation, at the suit or instance of individuals, for any capture made on the high seas, and carried for adjudication into a belligerent port. Ibid. 12. Although the claims of a state may be ultimately affected by the decision of a cause, yet, if the state be not necessarily a defendant, the courts of the United States are bound to exercise jurisdiction. Ibid. 13. Where a claim to property is set up in one court, founded on a sentence of another tribunal, the court in which the claim is preferred must, of necessity, examine the powers of the other, in order to decide whether its sentence han VOL. I.-39 may, while lying there, be lawfully proceeded against and condemned by a court of the captor. Hudson et al. v. Guestier, 4 Cranch, 293; 2 Cond. Rep. 109. 16. The court is not bound to give an opinion upon an abstract question_propounded to it, not belonging to the case. Hamilton v. Russell, 1 Cranch, 310; 1 Cond. Rep. 318. 17. The court has the exclusive power of deciding whether a written contract be usurious. No principle is more clearly settled, than that the construction of written evidence is exclusively with the court. Levy v. Gadsby, 3 Cranch, 180; 1 Cond. Rep. 486. 18. The court, upon a jury trial, is bound to give an opinion, if required, upon any point relative to the issue. Douglass & Mandeville v. M'Allister, 3 Cranch, 298; 1 Cond. Rep. 537. 19. The trial of a municipal seizure must be regulated exclusively by municipal law. No foreign court can question the correctness of what is done; unless the court, passing the sentence, loses its jurisdiction by some circumstance which the law of nations can notice. Hudson et al. v. Guestier, 4 Cranch, 293; 2 Cond. Rep. 109. | 20. The supreme court of the United States has no power, under the 25th section of the judiciary act of 1789, to revise the decree of a state court, where no question was raised or decided in the state court upon the validity or construction of an act of congress, nor upon the authority exercised under it; but on a state law only. M'Bride v. Hoey, 11 Peters, 167. 21. The principle of retaliation upon the subjects of a foreign state, for its unjust proceedings towards the citizens of the United States, is a political, not a judicial measure. It is for the consideration of the government; but it is not a rule of decision in courts of justice. The Nereide, Bennett, Master, 9 Cranch, 388; 3 Cond. Rep. 439. 22. The laws of the United States require that a vessel which has been seized for violating them should be tried in the district where the offence is committed; and, certainly, it would be irregular and illegal for the tribunal of a different district to act upon the case. But of this irregularity, no foreign court could take notice. The United States might enable the admiralty courts 3 H General Principles. themselves injured by unlawful seizures, by officers of the United States. Congress has refused to the courts of the Union the power of deciding on the conduct of their officers in the execution of their laws, in suits at common law; until the case shall have passed through the state courts, and receive the form which may there of one district to decide on captures made for 29. The remedies in the courts of the United 23. Condemnation may take place in a prize States are to be at common law, or in equity, not cause, even when the prize is lying within the according to the practice of the state courts, but port of an ally or a neutral; and this right of according to the principles of common law and jurisdiction and condemnation applies equally to equity, as distinguished and defined in England. municipal seizures in the name of the sovereign, Consistently with these principles, where by the while the property is in a neutral port. If, in-statutes of a state, a title which would otherwise deed, the possession of the sovereign be lost by be deemed equitable, is recognised as a legal recapture, or escape, or voluntary discharge, the title; or a title which would be valid at law, is, courts may thereby lose the jurisdiction acquired under circumstances of an equitable nature, deby the seizure; but such loss is not to be pre-clared void; the right of the parties in such case sumed. The Bolina, 1 Gallis. C. C. R. 75. 24. The possession of the sovereign of the captors gives jurisdiction to his courts; the possession of the captors, in a neutral port, is that of their sovereign. If this possession be lost by recapture, escape, or voluntary discharge, the courts of the captor lose the jurisdiction they had acquired by the seizure. Hudson et al. v. Guestier, 4 Cranch, 293; 2 Cond. Rep. 109. 25. A petition to the legislature of a state, for the benefit of the insolvent laws of that state, and an order of the legislature thereon, directing a suspension of all process against the defendant, cannot operate or suspend proceedings in a court of the United States. Babcock v. Weston, 1 Gallis. C. C. R. 186. 26. The trial of prizes belongs exclusively to the courts of that state to which the captor belongs; and this right attaches, not only where the captured property is brought within the territory of the capturing power, but also when it is brought within a neutral territory. The Invincible, 2 Gallis. C. C. R. 29. may be as fully considered in a suit at law in the courts of the United States, as in any state court. Robinson v. Campbell, 3 Wheat. 212; 4 Cond. Rep. 235. 30. All courts from which an appeal lies, are inferior courts in relation to the appellate courts, before which their judgment may be carried; but they are not, therefore, inferior courts in the technical sense of the words. They apply to courts of a special and limited jurisdiction, which are erected on such principles, that their judg ments taken alone are entirely disregarded, and the proceedings must show their jurisdiction. The courts of the United States are all of limited jurisdiction; and their proceedings are erroneous, if the jurisdiction be not shown upon them. Judgments rendered in such cases may be reversed, but this court (the supreme court) is not prepared to say that they are absolute nullities, and may be totally disregarded. Kempe's Lessee v. Kennedy, 5 Cranch, 173; 2 Cond. Rep. 225. 31. In cases of fraud, trust or contract, the jurisdiction of a court of chancery is sustainable wherever the person may be found, although lands not within the jurisdiction of the court may be affected by the decree. Massie v. Watts, 6 Cranch, 148; 2 Cond. Rep. 336. 27. The judiciary act gives the federal courts exclusive cognizance of all seizures made on land or water. Any intervention of the state authority, which by taking the thing seized out of the possession of the officer of the United 32. It is, doubtless, within the province of a States, might obstruct the exercise of this juris- court, in the exercise of its discretion, to sum up diction, would unquestionably be a violation of the facts in the case to the jury, and submit the act: and the federal court having cognizance them, with the inferences of law deducible of the seizure, might enforce a redelivery of the therefrom, to the free judgment of the jury. thing by attachment, or other summary process, But, care must be taken in all such cases, to against the parties who should divest such pos- separate the law from the facts, and to leave the session. The party supposing himself aggrieved latter in unequivocal terms to the jury, as their by a seizure cannot, because he considers it tor-true and peculiar province. M'Lanahan v. The tious, replevy the property out of the custody of the seizing officer, or of the court having cognizance of the cause. If the officer has a right, under the laws of the United States, to seize for a supposed forfeiture, the question whether that forfeiture has been actually incurred, belongs exclusively to the federal courts, and cannot be drawn into another forum: and it depends on the final decree of such courts whether the seizure is to be rightful or tortious. Slocum v. Mayberry, 2 Wheat. 1; 4 Cond. Rep. 1. 28. The common law tribunals of the United States are closed against parties who suppose Universal Insurance Company, 1 Peters, 182. 33. Little stress ought to be laid upon general expressions falling from judges in the course of trials. Where the facts are not disputed, the judge often suggests, in a strong and pointed manner, his opinion as to their materiality and importance, and his leading opinion of the conclusion to which the facts ought to conduct the jury. This ought not to be deemed an intentional withdrawal of the facts, or of the inferences deducible therefrom, from the cognizance of the jury, but rather as an expression of opinion addressed to the discretion of counsel, whether |