judgment in a summary proceeding, upon motion of the parties; the only requisite being that the opposite part shall be heard, so that, in directing restitution, no further wrong be committed. The restitution is not made to depend at all upon the question whether or not the court rendering the judgment reversed acted within or without its jurisdiction."

Case No. 3. Miller v. Clark (1892) 52 Fed. 900.

Townsend, J., said: "With the light now afforded by the decision of the supreme court dismissing the appeal, it is seen that this case should never have been brought to the circuit court, and should have been dismissed at the outset for want of jurisdiction, and therefore without costs to either party. It was, in fact, tried and dismissed on the merits, and costs were awarded the defendants, and, except for want of jurisdiction, that decision was presumably and apparently correct. Before having that decision reviewed and set aside, complainant was obliged to pay the costs so awarded, as well as the costs in the supreme court. Miller v. Clark, 47 Fed. 850. It seems just that defendants should retain these costs. The supreme court gives the defendants costs in such cases wherever it thinks it has the power to do so. Winchester v. Jackson, 3 Cranch, 515; Assessors v. Osbornes, 9 Wall. 567; Montalet v. Murray, 4 Cranch, 46; Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379, 4 Sup. Ct. 510.

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CHAPTER XXXII.

QUESTION OF INTEREST ON COSTS.

Case No. 1. Gunther v. Liverpool, L. & G. Ins. Co. (1882) 10 Fed. 830.

Benedict, D. J., said: "The item of interest on the judgment from the day of the rendition of the verdict to the day of entry of the judgment, amounting to some five hundred dollars, may be allowed. The delay was caused by a stay of proceedings during the pending of a motion for a new trial. This delay should not be at the plaintiff's expense. The payment of the interest meanwhile might properly be deemed a condition attached to the stay, or, if not, an entry of the judgment as of the date of entering the motion for new trial might, if necessary to avoid damages to the plaintiff, be permitted; but I consider the item of interest on a ver dict within the equity of the statute (section 996, Rev. St.), and for that reason taxable. National Bank v. Mechanics' Nat. Bank, 94 U. S. 439. v. Griswold, 5 Sawy. 24, Fed. Cas. No. 4,040."

See, also, Dowell

Case No. 2. Dyer v. National Steam Nav. Co. (1886) 118 U. S. 507, 6 Sup. Ct. 1174.

The court said: "In the present case the circuit court, by its original decree, made in 1878, adjudged to the libelants their costs in the district court, amounting to

$2,173.10. In March, 1882, we affirmed this part of the decree, but without interest. In affirming a decree in admiralty in this court, if interest is not expressly allowed, it is not included. Hemmenway v. Fisher, 20 How. 255. No interest on these costs, therefore, can be claimed up to the date of our decree. The new departure then taken by the libelants in claiming the insurance opened the matter so as to postpone a final decree in the case in the circuit court until the decree now appealed from was made. This decree adjudges to the libelants their costs in the district court precisely in accordance with our mandate. All delay in entering the decree was caused by the libelants themselves. If any interest was allowable on the costs in question, it would only have been that accruing from the date of our decree, March 20, 1882, to the time of rendering the decree appealed from, September 22, 1884. In view of the cir cumstances of the litigation which took place in that period, we do not think that the decree of the circuit court is open to objection. Decree affirmed."

Case No. 3. People's Bank v. Aetna Ins. Co. (1896; S. C.) 76 Fed. 548 (at law).

Judge Simonton said: "Section 1010, Rev. St. U. S., and Sup. Ct. Rule 23, subd. 2, provide that, in cases before the appellate court deserving this judicial condemnation, the court can affix a percentage of damages. This takes the place of any state legislation or practice. As the case at bar has been to the appellate court, and comes back without any such action, this court cannot impose any penalty, or adopt the course pursued by the state court. The defendant is not entitled to interest on his judgment for costs."

Case No. 4. Jesup v. Wabash, St. L. & P. Ry. Co. (1899; N. D. Ohio) 94 Fed. 20.

Judge Taft said: "The fact that the master forebore to collect his $2,500 until it was finally settled who should have to pay it is no reason why he should not now collect the full amount due him, with interest. The judgment in his favor has never been set aside. It has only been decided that the Wabash Railroad Company is to pay it, instead of Mr. Compton. The Wabash Railroad Company has suffered nothing from the master's failing to collect it from Compton. If he had collected it from Compton, the Wabash Railroad Company would have had to pay interest. I do not see why it should not have to pay interest now. The claim is not an unliquidated, unascertained claim.. It was never objected to, and never appealed from, in so far as its amount was originally adjudicated. The motion to retax the costs is overruled."

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CHAPTER XXXIII.

LIABILITY OF SURETIES.

Case No. 1. Pullman's Palace-Car Co. v. Washburn (1895; Mass.) 66 Fed. 790 (affirmed 21 C. C. A. 598, 76 Fed. 1005).

This was a writ of scire facias sued out by the Pullman's Palace-Car Company against Frank L. Washburn to enforce against him a liability for costs as indorser of the writ in an action brought against the Pullman's Palace-Car Company by one Maggie M. Harrison, in which a judgment had been rendered against the plaintiff for $813.94, costs.

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Judge Putnam said: "By the effect of the statute under which the indorsement was made, the indorser bound himself to pay a specific award, to be enforced against himself by the usual proceedings. These are supplemental to the judgment, and in execution of it. On all points submitted to us, our views are with the plaintiff. There will be a judgment for the plaintiff for the amount claimed, with interest thereon from the date of the writ."

Case No. 2. Sawyer v. Williams (1896; Md.) 72 Fed. 296.

The plaintiff, in a case which had been removed from the state court to the federal court, gave security in the