4 FEDERAL nEr>onrE1z.
system erected by legislation for the state courts of equity, to be found
in our Tennessee Code, there must be a good deal of forbearance for
irregularities like those found in tl1e conduct of these cases. There
can be no doubt that a too close adherence tothe technicalities of
our equity practice, when they are relied on by a kind of ex post facto
application of them, as in this case, to defeat some unforeseen re-
sult, would frequently work injustice because of the fact that there
has been, under the influence mentioned, so little regard for them in
the progress of these particular cases, and generally by the bar in all
cases. The contention here that there can be taxed no solicitor’s
fee because there has been no replication filed in some of the cases,
does not admit of much consideration at the hands of the court when
the default is that of the party making the objection. The truth is
our state Code has abolished replications in equity, and until recently,
when the necessity for them in our federal practice has been empha-
sized, there has been a general neglect to file them, as by the plain-
tiffs in these cases. It does not lie with them, therefore, to say that
without a replication there can be no "flnal hearing," and conse-
quently no taxed docket fee.
There are other irregularities of practice relied on to defeat the
docket fees in these eases that can be accounted for only by this dis-
regard of our own, and the mistaken application of the state prac-
tice. For example, these cases have never, in fact, been set for hear-
ing at all. Our state practice requires the clerk, as soon as answer
is filed, to set all cases for hearing on the hearing docket. It has al-
ways been so done by the clerk of this court; and it may be doubted
if any equity case in the court has ever been properly set for hearing
according to the practice that should govern us. 2 Daniel], Ch. Pr.
_ (5th Ed.) 964-971. The cases go to the trial docket, under the prac-
tice grown up in the clerk’s ofhce, even before answer filed, and are
called term after term, and whatever is to be done is accomplished
without the least regard to the technical practice.
Again, our state practice, by statutory regulation, permits a plain-
tiff until final decree to dismiss his bill at will, and before the clerk.
Not so here. The right of the plaintiff to dismiss is not an unquali-
fied one, and it can never be properly done in the clerk’s office, ex-
cept, perhaps, by force of equity rules 2 and 5 in the special case
provided for in equity rule 66; and it is only, perhaps, by the court,
in term-time, that any dismissal can be made, it not being one of
those interlocutory steps authorized to be done in vacation or at rule-
days for the preparation of a cause, but essentially a final disposi-
tion of it. Equity Rules, Nos. 1-6; 1 Daniell, Ch. Pr. 790-812; Ste-
vens v. The Railroads, 4 FED. REP. 97.
Yet the state practice was attempted to be followed in these cases,
and we have in one of them the anomaly of an attempted dismissal
at rules before the clerk, even after an account had been ordered.
With this constant tendency to mix state with federal practice, which