8 FEDERAL REPORTER.
words that are erroneously supposed to mean, technically, that cere-
mony of trial in equity which takes place when the issues are made,
the proof taken, and the case is heard by the chancellor "upon its
merits," we are asked to overthrow a principle in the law of costs,
established, as I shall presently show, by a series of statutes, the
oldest of which was enacted nearly 500 years ago, namely, that when
a plaintiff makes a false clamor in court, or files a bill in chancery,
and dismisses it without trial, he shall pay to the defendants full
costs, including the fees due his attorney. And we are besought to
do this when the act of congress itself requires that the costs shall
be taxed “in cases where, by law, costs are recoverable in favor of
the prevailing party," and only in such cases, and especially men-
tions the fees due the attorney in the same connection with those due
the clerk and marshal, and requires them to be taxed by the same
words it requires the fees of those officers to be taxed in cases like
these. Rev. St. § 983.
Now, no book of practice or accurate writer ever describes the trial
of a cause on its merits as the "final hearing." There was "a sul;-
poena to hear judgment" and a "hearing," but it is called "tltc hear-
ing," not a ‘ffiuaZ hearing/’ 1 Bouv. Dict. tit. "Hearing;" 2 Daniell,
Ch. Pr. 967-986. Demurrers are "heard," and pleas are set down
for "hearing" or argument, and exceptions to reports are sct for "hear-
ing," etc.; but the trial on the merits is "thc hearing." It may or
may not be thefnal hearing, for after it there often come other hear-
ings, such as exceptions to the master’s report, often more important
and formidable than the other hearings, or on further applications
for instructions, etc.; so that, strictly speaking, the "linal hearing"
is the last hearing. At least, it cannot be accurately applied to the
trial on bill and answer, or on bill, answer, replication, and proof,
and confined to that. But the distinction between final costs and
interlocutory costs was well established, and may well be supposed to
have been in the minds of the legislature when dealing with the sub-
ject of costs. The former are awarded, not necessarily, nor always
properly, though possibly they are generally, by the decree made at
the hearing, "upon the bill, answer, replication, proofs, and former
proceedings had," as the formula goes, for a decree "on the merits,"
as it is called at the bar, and in common parlance. The "final"
costs may be, and should be, reserved until the very end of the case,
which often comes after "the hearing," when the matter of costs is
"flnally" disposed of by the court. As an illustration of this dis-
tinction, the familiar test of a final decree may be referred to, for it
is often said that a decree is final which adjudges costs.
It is to be observed that the statute uses the words "on nnal hear-
ing," not {for final hearing;" “on a trial by jury, " not ‘f/"or a trial by
, jury;" "zohe:z judgment is rendered without a jury," not for a judg-
ment so rendered; and "whcn a cause is discontinued," not for the
discontinuance. But subsequently the phraseology is changed, and »