10 FEDERAL Rnronrsn.
_ I shall not take space to trace the legislationfor courtsof law
Which, from theearliest statutes of Marlbridge (A. D. 1267) and
Gloucester, (A. D. 1278,) will be found a complete parallel to the
legislation I am about to cite in respect to costs in equity, and which,
by constantly increasing severity, sought to discourage false suits by
giving a. defendant full costs against a plaintiff who failed in his
action, and was especially severe on one who discontinued his suit,
or was nonsuited for his own default without a trial; these costs to
the defendant taking the place of the former fine to the king. 2 Tidd,
Prac. 976 et seq.; 2 Bl. Comm. 439; 3 Bl. Comm. 188, 357, 399,
451; 17 Amer. Law Beg. 693.
Mr. Beames, who wrote a little before our equity rules were pro-
mulgated of the practice as it was then understood, gives an intel-
ligible account of the general principles on which a court of equity
acts in giving or withholding costs; and according to these principles,
as I have endeavored to show, we are bound to determine the ques-
tions on this motion, for it is now for the court to decide whether
these defendants are entitled to have costs, and if so, what costs,
taxed as “recoverable by law" in favor of the prevailing party, for
sums presumably already paid by them to the clerk, marshal, and
solicitor, or for which they are liable to these persons. Rev. St. §
983. 1
It is within the discretion of the court to give or withhold them on
either side, or to give some and withhold others, or to divide_ them,
not arbitrarily, but according to the practice known to courts of
equity and found in the authorities on the subject. This author tells
us that the statute of 17 Richard II. c. 6, (A. D. 1394,) was the very
foundation of costs in equity, and it enacts: ,
"FOl‘3SlHUCll as people be_ compelled to come before the king’s council,or in
the chancery, by writs grounded upon untrue suggestions that the chancellor
for the time being, presently after that such suggestions be dulyfozmd and
proven untrue, shall have power to ordain and award damages according to
11is discretion to him which is so troubled unduly, as before is said." Beames,
- Eq. Costs, 4.
It is noticeable that the very question we have in this case arose
on this statute, and Lord Conn gave it as his opinion, citing some
decisions in the Year Books, that, on the strength of the words itali-
cized in the above extract, costs were not taxable unless the case was
tried, and therefore were not recoverable upon dismissal or demur-
rer. Beames, Ch. Costs, 6, and note; 2 Comyn, Dig. 426, “Costs."
Subsequently Lord Ilannwicxn refused to recognize the force of this
construction, or that the powers of the court were limited by this
statute, and claimed that always and without its authority the court,
“from conscience and arbitrio toni viri, as to satisfaction on one side
A or other, on account of vexati0n," decreed costs. Id. 8; Burford v.
Lenthall, 2 Atl:. 551. j
The statute of 15 Henry VI. e. 4, recited that Ydivers persons were