discretion of the court.21

In proceedings for a limitation of liability, costs are in the The costs of a contested issue usually fall on the losing party.22 Where the rule requires appellant to pay all costs before he is delivered the record for an appeal,23 the petitioner appellant may be required to advance them. In such a case the court may order that he be repaid by the claimants so much of the commissioner's fees as he has advanced to the commissioner for hearing their claims.24 Where the claims appear to have a slender foundation or claimants go into unnecessary detail in the presentation of their case or in cross-examination the court may require them to give security for costs including their reasonable proportion of the commissioner's fees.25

Charges of a commissioner in taking proof of an uncontested claim should be paid from the fund, not by the petitioner.26 It has been held that a petitioner is entitled to a docket fee out of the fund for each creditor who proves his claim, but that his costs are not preferred over those of such creditors, 27 and that where a stipulation for value is given, he is entitled to a single docket fee,28 payable by the stipulators and not out of the fund.29 Where the owner gives a stipulation for value, he must pay the taxable costs incident thereto, including the expense of the appraisal.30 The expenses of administration, including the fees and other charges of the officers of the court and of the commissioner, should ordinarily be paid from the fund.31

Where a libel is dismissed for want of jurisdiction, no costs are allowed.32 Where a libel is filed to enforce a maritime contract costs can be awarded upon its dismissal because there is no maritime lien.33 Where the libel contains allegations of

21 The Scotland, 118 U. S. 507, 518, 30 L. ed. 153, 155; Closz & Howard Mfg. Co. v. J. I. Case Threshing Mach. Co., 216 Fed. 937.

22 The H. F. Dimock, C. C. A., 77 Fed. 226, 238. Such costs in'clude proctors' fees. The W. A. Sherman, C. C. A., 167 Fed. 976.

23 Indra Line v. Palmetto Phosphate Co., C. C. A., 239 Fed. 94, 96. 24 Ibid.

25 Ibid.

26 The H. F. Dimock, C. C. A., 77 Fed. 226, 238.

27 Re Norwich & New York Transp. Co., 10 Benedict, 193, 18 Fed. Cas. No. 10,361.

28 Re Excelsior Coal Co., 136 Fed. 271; aff'd C. C. A., 142 Fed. 724, 74 C. C. A., 56.

29 Ibid.

30 The H. F. Dimock, C. C. A., 77 Fed. 226, 238.

31 Ibid.

32 The McDonald, 4 Blatchf. 477; Wenberg v. A. Cargo of Mineral Phosphate, 15 Fed. 285, 288.

38 The Francisco, 118 Fed. 112.

the facts which establish the jurisdiction and the evidence subsequently shows that there is none, costs can be awarded upon a dismissal.34

It seems that the distinction between proceedings in rem and in personam has no proper relation to the question of jurisdiction.35

In a proceeding in rem, under section ten of the Pure Food and Drug Act, the court has power to render judgment for costs against the claimant, although no stipulation to pay costs has been made 36 and no costs can be recovered against the United States.37

Where a libellant upon his own appeal recovers less than three hundred dollars, exclusive of costs, he cannot recover costs, but, in the discretion of the court, may be adjudged to pay costs himself.38 When both parties appeal, and the decree of the District court is not disturbed, it is not usual to allow costs to either party.39 Where the mandate is silent, as to costs, their allowance remains discretionary with the District court.40 Where the parties stipulate that a suit shall be discontinued and the libellant pay costs as taxed by the court, the court has no power to include damages for the fraud of libellant in filing the libel, nor for the detention of the vessel, nor for premiums paid for a stipulation for value, nor for surveyor's fees and expenses not incurred under its order.41

§ 412. Costs upon error and appeal. Upon a writ of error the successful party is entitled to the costs unless the reversal

34 Hazelwood Dock Co. v. Palmer, C. C. A., 228 Fed. 325.

35 Benedict's Admiralty, § 204; quoted without disapproval in Hipolite Egg. Co. v. U. S., 220 U. S. 45, 59, 55 L. ed. 364, 368.

36 Act of June 30, 1906, ch. 3915; 34 St. at L. 768.

37 Hipolite Egg. Co. v. U. S., 220 U. S. 45, 50, 60, 55 L. ed. 364, 369. 38 The Cassins, 41 Fed. 367; U. S. R. S., § 968, which, however, refers in terms only to the Circuit Court.

39 The William Cox, 9 Fed. 672;

McKeen v. Morse, 1 U. S. App. 7. A court of admiralty has no power to allow costs other than those provided for by statute, unless for an expense incurred under its order, and, there being no statutory provision for the allowance of mileage to a proctor in attending on the taking of depositions, no such allowance can be taxed as costs. Pacific Mail S. S. Co. v. Iverson, C. C. A., 154 Fed. 450.

40 The Aida, C. C. A., 255 Fed. 50. 41 The Reliance, 189 Fed. 416.

is because of want of jurisdiction in the court below.1 Upon appeal the award of the costs is discretionary with the appellate court.2 In an appellate court, when a judgment or decree is reversed for want of jurisdiction in the court below, costs are usually imposed upon the party who sought the jurisdiction of the court below, either by original process or by removal, whether he is respondent or appellant. But where the objection was not raised by the defendants either in the trial court or the court of review, the judgment may be reversed without costs of the appeal; and, in the absence of an amendment, the case may be dismissed without costs there. When an appeal or writ of error is dismissed for want of jurisdiction, costs of the motion, including at least the clerk's fee for printing and supervising the record, may be taxed.5

The successful party is usually allowed the costs, even when he does not wholly succeed, provided that his success is substantial. When both parties appeal, and the decree is in all respects affirmed, usually no costs of the appeal are allowed. Where both appeal and each succeeds the same rule usually applies. Where the decree was affirmed, except as to a slight error of fact

§ 412. 1 Hinchman v. Ripinsky, C. C. A., 202 Fed. 625.

2 Frey & Son, Inc. v. Welch Grape Juice Co., 242 Fed. 1004.

3 Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379, 28 L. ed. 462; Continental Ins. Co. v. Rhoads, 119 U. S. 237, 30 L. ed. 380; Peper v. Fordyce, 119 U. S. 469, 30 L. ed. 435; Everhart v. Huntsville College, 120 U. S. 223, 30 L. ed. 623; King Bridge Co. v.. Otoe County, 120 U. S. 225, 30 L. ed. 623; Peninsula Iron Co. v. Stone, 121 U. S. 631, 30 L. ed. 1020; Chapman v. Barney, 129 U. S. 677, 32 L. ed. 800. Devost v. Twin State Gas & Electric Co., C. C. A., 252 Fed. 125.

4 Newcomb v. Burbank, C. C. A., 181 Fed. 334. Where the defect in jurisdiction was raised by the appellant for the first time upon the appeal, it has been held that he

could not recover his costs in the latter court, but that the costs below should be divided, Tug River C. & S. Co. v. Brigel, C. C. A., 67 Fed. 625; and in one such case the costs of the writ of error were imposed on the appellant. Hunt v Howes, C. C. A., 74 Fed. 657.

5 Bradstreet Co. v. Higgins, 114 U. S. 262, 29 L. ed. 176; Cir. Ct. of App. Rule 23; National Home for D. Volunteer Soldiers v. Parrish, C. C. A., 194 Fed. 940.

6 Bailey v. Mississippi Home Telephone Co., 254 Fed. 358; Stennick v. Jones, C. C. A., 256 Fed. 354.

7 Lehigh & Wilkes-Barre Coal Co. v. Hartford & N. Y. Transp. Co., C. C. A., 227 Fed. 1019.

8 The William Cox, 9 Fed. 672. 9 Standard Plunger Elevator Co. v. Stokes, C. C. A., 212 Fed. 892.

to which the attention of the court below had not been directed by a motion to correct the decree nor by the assignments of error, costs were awarded to the appellee.10 In a case where the appellant succeeded only in modifying the decree, it was held that neither party should have the costs of the appeal.11 When neither party succeeds, the costs upon an appeal may be apportioned.12 An appointment may also be made when the successful party has needlessly amplified the record and the printed arguments.13

Where there was no appearance or brief filed by the appellees the court made the affirmance without costs. 14 A party who by stipulation took no part in an appeal is not entitled to any costs in the appellate court.15 Where appellees severally interested. recover costs in the Circuit Court of Appeals, separate costs are taxed for the several appellees who appear separately and file separate briefs. 16

The fact that the decree is affirmed upon grounds not stated in the opinion of the court of first instance does not necessarily deprive the respondent of costs.17

Where a decree in equity is reversed or modified upon an appeal with costs, the costs of the appeal only are meant unless the mandate otherwise provides. 18 The application for the costs in the District Court must be made thereto.19 The same rule prevails in admiralty.20 The District Court cannot interfere with the taxation of the costs by the clerk of the court of review.21 Where a decree for costs has been reversed after its collection the District Court upon receipt of the mandate may award resti

10 Alaska Juneau Gold Min. Co., v. Ebner Gold Min. Co., C. C. A., 239 Fed. 639, 643.

11 New England R. Co. v. Carnegie Steel Co., C. C. A., 75 Fed. 54. 12 Kell v. Trenchard, C. C. A., 146 Fed. 245.

13 Ball & S. F. Co. v. Kraetzer, 150 U. S. 111, 37 L. ed. 1019, infra, § 419b.

14 Benedicta V. West India & Panama Telegraph Co., 256 Fed. 417.

15 Pollard v. Reardon, 65 Fed.

tution.22 The costs of the transcript, if allowed, are taxed in the court below, not in the court of review.23 The cost of printing the record is taxed in the higher court.24

Where upon a writ of error a judgment is reversed with costs and a final disposition of the case is made all the costs of the District Court, including those of all trials, are taxed in such court against the unsuccessful party.2 When a new trial is ordered upon such a reversal the costs of the writ of error are taxable immediately and do not abide the event.26

25

Where the Supreme Court of the United States modified, with costs to the defendant, certain judgments of the State courts in favor of the plaintiff, and the State Court of Appeals remitted the case to the court of original jurisdiction, "without costs in this court, ," it was held that the defendant was entitled to recover only the costs in the Supreme Court of the United States, and that the plaintiff was still entitled to the costs which he was awarded by the original judgments.27 Where the Supreme Court of the United States reversed the judgment of the State court with costs the plaintiff in error was allowed to tax the costs below.28

The court below has the right to construe the mandate of the court of review concerning costs,29 subject to review by appeal 30 or mandamus,31 as the case may be.

§ 413. Petitions for leave to sue in forma pauperis. The right to sue in forma pauperis originated in the statute of Hen. VII. This and the subsequent statute of Hen. VIII. are confined to actions in the courts of common law, and do not extend to defendants. The courts of equity have adopted the

22 Ibid.

23 Bailey v. Mississippi Home Tel. Co., 254 Fed. 358; Simons v. Cromwell, C. C. A., 2nd Circuit, Jan., 1920, in which the author was counsel; C. C. A. Rule 29.

24 Nichols Shepherd & Co. V. Marsh, 131 U. S. 401.

25 Bailey v. Mississippi Home Tel. Co., 254 Fed. 358.

26 Bailey v. Mississippi Home Tel. Co., 254 Fed. 358; Berthold v. Burton, 169 Fed. 495; Simons v. Crom

well, C. C. A., 2nd Circuit, Jan., 1920, in which the author was counsel.

27 Stevens v. Central Nat. Bank, 168 N. Y. 560.

28 Green v. Supreme Council of Royal Arcana, 91 Misc. 606.

29 Persons v. Wirgman, 140 Fed. 207.

30 Kell v. Trenchard, C. C. A., 146 Fed. 245.

31 Infra, § 457.