V GOODYEAR v.·SAwYER. ‘ 3
Q E2. SAME Summer-Drsnrsssr. Arran Dmcnmr: ron Accounr Ann Cosrs.
_ vVl1<:l`B there has been a decree for an account and costs against the defend-
ant, but subsequently the plaintiff dismisses the bill, the docket fee is taxable
. in lavor of the defendant, notwithstanding the former decree.
. In Equity. Motion to retax costs. ’
. This is a motion to retax the costs on execution in six cases of the
plaintiffs against the several defendants, the objection in all being
the charge of $20 for a docket fee to defendant’s solicitor. They
were bills in equity for an account of proiits, injunction, etc., for the
inringement of a patent. The objection urged on this motion was
that there was no "linal hearing, " as required by the statute, to en-
title the solicitor to the fee. The cases were not all disposed of
alike. This case, No. 126, had been set for hearing according to the
practice of the court, and was, with a number of others not involved
»in this motion, by the court, on application of plaintilts’ solicitor,
— "dismissed without prejudice, at the cost of complainant, for which
costs to be herein taxed let execution issue." This w_as done on the reg-
ular call of the docket. In No. 146 there was a decree at the hear-
ing on March 30, 1872, for an injunction and an account, and against
the defendant for costs; but on December 30, 1872, on the plaintiii‘s’
application, the case was, among others, dismissed by the court, by
an order which recites that they "l1ad been dismissed at the Octo-
ber, 1872, rules, the plaintiffs assuming all costs not previously de-
creed against the defendants, and that the clerk, having omitted to
· enter the order at the rules, it is now made nunc pm tuzzc, and is in all
things confirmed." No. 145 was dismissed by the above order of
December 30, 1872, but there was never in fact any other hearing on
' ` the merits, no1· any account ordered, nor any decree for costs against
the defendant in the case. No. 132 is said by counsel for the plaintiff
to have been dismissed in the clerk’s oflice; but the only entry of any
dismissal is a docket entry, thus: "August 5, 1873. Costs paid;" and
No. 158, said to have been dismissed in the clerk’s office, is like the last-
mentioned case, with no entry except on the docket, thus: “July 6,
. 1875. Clerk’s and commissioners costs paid." No. 181 is said, like
zthe last two cases, to have been dismissed in the clerk’s office; but
there is not even a docket entry or anything to show the dismissal.
There were answers filed in all the cases, replications in two of them,
but no replications in the others. They were all set on the hearing
docket, and repeatedly called and continued until disposed of as
above indicated. Executions issued for costs, and this motion to re-
·tax and strike out the docket fees for the solicitor was made in all the
cases. .
D. M. Scales, for the motion. .
y George Gillham, contra.
, Hsmioxn, J. Until the practice of this court conforms more closely
to the equity rules, and the analogies to wl1ich equity rule 90 directs
;us for our government, and is less iniiuenced by the more modern