ooommn v. sxwrmz. 13
allowance for attorney’s fges on interlocutory judgments; and left the
principles of taxation to be governed by the law of costs as under-
stood in courts of law, equity, and admiralty, respectively. Act
1853, c. 80, (10 St. 161.)
It must be conceded that the act is, in respect of the fees for at-
torneys, somewhat obscure, and the decisions have not been uniform.
In Petersoifs Ex’rs v. Ball, 1 Cranch, C. C. 571, (A. D. 1809,) when,
however, the act of 1796, above referred to, had expired, it was held
that where a bill was dismissed after answer filed, a lawyer’s fee
should be taxed. The court cites a Virginia statute, the effect of
which I cannot ascertain. In Dedekom v. Vose, 3 Blatchf. 77, (S. C.
Id. 153,) it was held that the attorney’s fee could not be allowed upon
interlocutory or collateral proceedings, and only upon an actual con-
testation of the case upon the merits, and that it could not be taxed
twice in the same case,-first on final decree against the principal,
and afterwards on another decree against the sureties. Nor can it
be taxed more than once when a case has been twice heard, as before
and after appeal. Troy Factory v. Corning, 7 Blatchf. 16.
In Huyjbrii v. Grirfiths, 3 Blatchf. 79, an appeal in admiralty was
dismissed before the hearing, but on motion of the adversetparty,
and it was held the docket fee was taxable "on a final disposition of
a cause on the calendar," which is precisely the ruling I make in
these cases. There was no "hearing" in any sense in which these
cases were not heard; certainly not any "final hearing" except in the
same sense these cases were finally heard.
In Goodyear v. Osgood, 13 O. G. 325, it was held that "wherever a
5 ‘ final decree is entered by the court in an equity cause, after replica-
tionfiled, for the purposes of taxation of the docket fee this is to he
considered as the ‘final hearing’ referred to in the Revised Statutes,
§ S24." The cases were dismissed on motion of the complainants
after an interlocutory decree in another case settling the rights of
the parties. As I understand the case, it supports the ruling made
here, since the replications in these cases are, for reasons already
stated, considered as filed; and the disposition made of that ruling
of Judge Snsvnnfs bythe adverse case of Coy v. Perkins, 13 FED.
Rev. 111, is not quite satisfactory. It certainly cannot be material
what motive influenced the plaintiff to dismiss,——whether because of
an interlocutory decree in another case, or for other reasons. lf he
dismissed voluntarily, as he certainly did in the two cases mentioned
_ in the report of the facts, which were not included in the stipulation
as to the case against Davis in which the interlocutory decree was
rendered, there was no "final hearing" as those words are interpreted
m Coy v. Perkins, supra.
The construction placed on the opinion in Goodyear v. Osgood, supra,
by Coy v. Perkins, supra, seems to be that if the plaintiff dismisses
because he concludes for himself he cannot succeed, the docket fee is
Dot taxable; but if the court has convinced him by an interlocutory