12 FEDERAL 1tE1>o1:TER.
hearing in any proper use of that term. The great controversy has
been whether such a dismissal, where there is no reservation of a.
right to sue again by taking the order "without prejudice," is a bar
to a second suit. Under the old law it probably was not, but this is
not certain; and by a comparatively recent order of court (promul-
gated A. D. 1852, since our equity rules) it is declared that when-
ever a party voluntarily dismisses his bill it shall have, without an
order to the contrary, all the force and effect of a determination on the
merits. This settled the controversy on the subject in a way that is
wise and just, whether binding on us or not. Stevens v. T/ze Railroads,
supra. I refer to this to show that, in the state of the law on this
point, it is by nomeans certain that congress, when it used the words
"final hearing," did not intend to provide as much for cases dismissed
like these as for cases dismissed in inrito at the hearing.
Until this act of 1853 our own legislation was quite barren on the
subject of costs. It is not necessary to go into it at length for that
reason. Its general elfect is stated in the cases of The Baltimore, 8
Wall. 377, 391; Costs in Civil Cases, 1 Blatchf. 652; District Attor-
rzey’s Fees, Id. 647; T/te Liverpool Pac/cet, 2 Spr. 37; Huthmray v.
Roach, 2 Wood. & M. 63; Jermtm v. Stewart, 12 FED. REP. 271, and
other cases there cited.
The general result was that, except during a short time of tempo-
rary statutes making partial regulations, and some statutes applying
to special cases, the federal courts were left to follow the state prac-
tice in cases at law, and the general equity practice in cases in that
court until this act of 1853 was passed. One of these temporary
statutes is, however, of great value in support of the views here ex-
pressed. l\Ir. Justice Nnnsox says that long after it expired it con-
tinued, without objection, to govern the taxation of costs, until the act
of 1853 was passed. It was, no doubt, the model used in construct-
ing the act of 1853. Its iirst sections were confined to regulating
costs in admiralty cases. Tue "counselor or attorney" was allowed
"the stated fee for drawing and exhibiting libel, etc., in each cause
three dollars; drawing interrogatories three dollars; and all other
‘ services in any one cause three dollars."
It then proceeded to enact:
“Scc. 4. That there be allowed and taxed in the supreme, circuit, and dis-
trict courts of the United States, in _/m:m· of the parties obtainingjudgments
tltereimsucli oonipensation for their travel and attendance a11d_/br attorney?
and cmin.selor’s _/ees, except in the distinct courts of admiralty and maritime
jurisdiction, as nre allowed in the supreme or superior courts of the respect-
ive states." Act. 1795, c. 20, § 4, (1. St. ut Large, 353;) Act 1796, c. 11, (ld.
451.)
The act of 1853 was intended, in my judgment, to express precisely
r what this section of the act of 1793 enacted as to attorney’s and
counselor’s fees, but to hx the amounts in all cases of law, equity,
and admiralty, to confine its operation to final costs, and exclude any