14 UFEDERAL REPORTER.;
decree inanother case-4to abide which he is not bound by any stipu-
1ation—that he cannot succeed, the docket fee is taxable. But Judge
Sunrnnx does not, I think, place his judgment on that ground. In
addition to what has been already quoted he says ·. “In the taxation
of costs final hearing is to be considered as the submission of a cause
in equity for the determination of the court, so that the case may be
finally disposed of upon bill and answer, or bill, answer, and replica-
tion. or upon pleadings and proofs, or otherwise after the case is at is-
sue." ' He evidently regards any dismissal on the plaintiffs applica-
tion after issue as a "iinal hearing." It illustrates the confusion in
which we are involved when we undertake to interpret "final hearing’-’
by the factitious circumstances attending the disposition of the particu-
lar case, and when we must inquire into the motives with which a
plaintiff is actuated when he makes his motion to dismiss his own case.
The opinion by Mr. Justice Cmrronn mentioned in the report of
Goodyear v. Osgood, supra, and in Coy v. Perkins, supra, was oral, and-
has never been, the clerk at Boston informs me, reported. `We can-_
not say on what reasoning he ruled, nor precisely the state of the
case. It only appears that the bill was dismissed "by agreement of
parties, with costs," and he held the docket fee not taxable. ‘
In The Bay·Ctty, 3 Fun. REP. -17, the fee was held taxable on a.
dismissal in admiralty after proof commenced, but without anyjudg-_
ment by the court. There the accidental circumstance that proof
had been heard constituted "a final hearing," but the court cited
Hayford v. Grtjfiths, supra, somewhat approvingly. In Strafer v.
Carr, 6 FED. REP. 466, and in Huutress v. Epsom, ]5 Fun. REP. 732,
it was held that when there was more than one "trial before a ju1·y"
only one docket fee is taxable, because, as was said by Judge Swme,
until there is a verdict andjudgment the case is not finally disposed
of, and it is only on such a disposition that the right to tax this item
of costs accrues. ln other ·words, interlocutory costs for the attor-
ney’s docket fee are not allowed; yet, on the st1·ict letter of the stat-
utc, there was "a trial before the jury," even where there was no ver-
dict; but it was held upon the whole statute that one fee only is to-
- be taxed, and this on the final disposition of the case. The learned
judge says the fee is not given "in proportion to the labor performed,"
and it seems to be introducing a very uncertain element ofconstruc-
tion into the statute to cast about and see what was done in each »
case, and the character ofthe performance, in order to determine
whether there was a final-hearing or not,. It would impose on the
taxing officer the necessity of taking proof aliunde the record to see
how much of a hearing there;was, what counsel did, and what the
court did, and such other matters of fact as would enable him to de-,.
termine whether there was a' "final hearing;" and in the end, as the
adjudicated cases show, there. would be great disagreement as to T
what constituted a "fmal hearing," and the effect of varying circum-
stances on the question.- To   .. · ..   , . , . . ; . ; i . -5