be taxed as legitimate costs in the case the taking and embodying in the record the vast amount of irrelevant and immaterial matter of examination and cross-examination of witnesses, swelling the record to nearly two hundred printed pages, for which we cannot apportion the responsibility. It is therefore ordered that the case be remanded to the court below, with instructions to dismiss the libel, and tax the costs equally against the parties."

Case No. 7. American Box Mach. Co. v. Crosman (1893; Mass.) 57 Fed. 1029 (in equity).

The bill was sustained, with costs against certain respondents, and dismissed with costs as against others. Judge Putnam said: "It is clear that the above-named respondents are at least entitled to have apportioned in their favor the joint items with reference to which they have appealed, and their appeal is allowed, proportions, nevertheless, to be corrected. As no appeal was taken by complainant, its objections to the allowance by the clerk of the whole of certain items, instead of a proportion, on the ground that all respondents united in their defense, need not be considered at length; but the rule seems to be that the judgment of the court dismissing the bill as to some operated as a severance.”

Case No. 8. The Oxford (1895; 5th Cir.) 13 C. C. A. 647, 66 Fed. 590.

The court said: "Here the record shows that the case was speedily heard in the district court, before the `exact facts necessary to a proper disposition of the same could be obtained; yet neither party asked for delay. If the testimony produced here could have

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Tax'n Costs-27.

been and had been produced in the district court, the costs of the same, following the general rule in such cases, would have been awarded against the ship. Under these circumstances, the costs of this court can hardly be imputed to the fault of either party, and substantial justice will be reached by awarding costs to neither." Case No. 9. Tug River Coal & Salt Co. v. Brigel (1895; 6th Cir.) 14 C. C. A. 577, 67 Fed. 625.

The court said: "Appellant has had the entire record brought up and printed. Appellant made no objection to jurisdiction in the circuit court, and did not call the court's attention to lack of jurisdiction. While the defendant appellant must recover costs in the court below, we do not think it should be allowed full costs in this court. The costs of the appeal will be divided equally."

Case No. 10. Tug River Coal & Salt Co. v. Brigel (1895) 17 C. C. A. 367, 70 Fed. 647.

A motion to modify the judgment as to costs in same case was denied.

Case No. 11. Tefft v. Stern (1896; 6th Cir.) 21 C. C. A. 73, 74 Fed. 755.

The court said: "The third motion, asking for an apportionment of the costs, is impracticable, and would throw upon the court the burden of separating and apportioning the costs, as between the plaintiffs in error and the defendant, in all cases where a part of the judgment of the lower court was adjudicated to be correct, and other parts erroneous, and a reversal had thereon. Defendant in error's motion will be therefore overruled."

Case No. 12. Willis v. Terry (1899; E. D. Pa.) 98 Fed. 8.

Judge Dallas said: "It has been strenuously urged by each party that the master erred in reporting that the costs of the reference should be equally divided between them, but I think it was right. My first impression was that, inasmuch as the plaintiff had filed thirteen exceptions, and had succeeded in maintaining but one of them, he ought to be required to pay a somewhat greater proportion of these costs; but on further reflection I have reached the conclusion that, as the answers were plainly insufficient in one particular, which alone justified objection to them, the respondents may fairly be charged with one-half of the expense of the investigation."

Case No. 13. Swift & Co. v. Kortrecht (1902; 6th Cir.) 50 C. C. A. 429, 112 Fed. 709.

The court said: "The provision in the decree requiring Swift & Co. to pay one-half the costs is also complained of. The matter of costs rests largely in the discretion of the chancellor, and his determination will not be reversed unless it is manifestly arbitrary and unreasonable. In the present instance we see no reason for thinking that the discretion of the court below was improvidently exercised."

Case No. 14. Hall v. Bridgeport Trust Co. (1903; Conn.) 122 Fed. 163 (in equity).

On objections to a bill for impertinence, which were referred to a special master, and on his report thereon, with the exceptions by both parties thereto.

Judge Platt said: "As to the costs of the reference:

The order was passed May 27, 1901, and purports to have been based upon the motion of both parties. In the final outcome, the balance of advantage appears to have accrued to the complainant; and yet in some respects the contention of the respondents has been sustained. The master has waited painfully long for his modest demand. Let the complainant pay one-fourth, and respondents three-fourths, of the master's charges. the amounts expended to abide the judgment of the court on the merits."

(420)

CHAPTER XXIX.

COSTS AT INTERMEDIATE STAGES.

Case No. 1. Avery v. Wilson (1884; W. D. N. C.) 20 Fed. 856.

Judge Dick said: "Courts of equity, however, having a large discretion in matters of costs, frequently give costs in intermediate stages of a cause, without waiting for the final decree. Adams, Eq. 389; 2 Daniell, Ch. Pr. 1457. This discretion can be properly exercised in giving to the prevailing party the incidental costs which have arisen during the progress of a cause about a matter completely disposed of by the court, and not necessary to be considered on further directions. In this case, the facts appearing in the evidence and the pleadings being deemed sufficient by the court for granting a perpetual injunction, which disposes of that part of the relief asked for in the bill, I am of the opinion that the costs incident to that proceeding should be allowed the plaintiff in the decree for a perpetual injunction."

Case No. 2. Mallory Mfg. Co. v. Fox (1884; S. D. N. Y.) 20 Fed. 409.

Judge Wallace said; "The eighty-second equity rule contemplates that the court shall charge the master's compensation upon such of the parties as the circumstances of the case render proper, but that rule is for the benefit of the master, and is to be enforced upon