ments for copies of models in the Patent Office used as evidence are taxable,26 but not disbursements for other models.27 It has been held that notarial fees for presentment and protest of a note, though paid before suit was brought, are considered as costs, not as damages.28 When the defendant finally prevailed, and a decree directing him to account was set aside, he was allowed to include in his bill of costs the fees which he had been obliged to pay the master.29 A defendant who finally prevails cannot tax the costs he has paid upon the overruling of his demurrer to the bill.30

§ 335. Costs out of the fund.-Costs are paid out of a fund or estate in the course of distribution by a court of equity, to trustees who have been obliged to engage in litigation for the benefit of the estate, and to persons who have been successful in suits brought by them on behalf of themselves and others similarly situated.1 The expression "trustees" is used here in the broadest sense of the word, as including not only those appointed by a deed of trust, but also agents, receivers,2 and personal representatives. All of these, when under a bill for an accounting they account fairly and pay the balance due from them into court, are entitled to their costs, provided that they have not acted unconscientiously in the suit or in the previous administration of their trust. The same is true when a suit is honestly commenced by one of them for the directions of the court concerning his trusteeship. But in suits brought by or against any of them, except possibly receivers, to which a stranger is a party, they are usually, if unsuccessful, liable

Curteis v. Candler, Mad. & Geld. 123; Stuart v. Boulware, 133 U. S. 78. 3 Rashleigh v. Master, 1 Ves. Jr. 201; Samuel v. Jones, 2 Hare, 246.

Atty. Gen. v. City of London, 1 Ves. Jr. 243; & C., 3 Bro. C. C. 171; Rashleigh v. Master, 1 Ves. Jr. 201; Samuel v. Jones, 2 Hare, 246; Curteis v. Candler, Mad. & Geld. 123.

Henley v. Philips, 2 Atk. 48; Lloyd v. Spillat, 3 P. Wms. 344, 346. 6 Howard v. Rhodes, 1 Keen, 581; O'Callahan v. Cooper, 5 Ves. 117, 129; Hide v. Haywood, 2 Atk. 126.

7 Hicks v. Wrench, Mad. & Geld. 93; Henley v. Philips, 2 Atk. 48.

12

personally to him for the costs as between party and party, which costs, together with the expenses of the suit, will be allowed them upon their accounting, if the suit was prosecuted or defended in good faith for the benefit of their trust.10 Costs will also be paid out of a fund under the control of a court of equity to persons who have been successful in a suit concerning it, brought by them in behalf of themselves and others similarly situated with them." Instances of this are a suit brought by a single creditor for a general administration of assets, and by a single beneficiary of a trust to prevent a loss to the trust estate.13 Costs have been allowed in a similar case to a party who by his litigation had benefited the fund, although he eventually failed to collect his own claim against it.14 Such costs are, in the distribution of the fund, paid before all claims against it, except those of trustees who have not been guilty of misconduct.15 The same rule applies to a suit brought by a single creditor of the estate against an executor or administrator for the satisfaction of his own claim.16 In such cases the personal representative can only recover his costs from that part of the estate which remains after the complainant has been paid the full amount of his claim with costs,

8 Edwards v. Harvey, G. Cooper, 40; Poole v. Franks, 1 Molloy, 78; Westley v. Williamson, 2 Molloy, 458. See § 251. But see Tug R. C. & S. Co. v. Brigel (C. C. A.), 70 Fed. R. 647, cited supra, § 327.

9 Cowdrey v. Galveston, H. & H. R. Co., 93 U. S. 352; Humphrys v. Moore, 2 Atk. 108.

10 Henley v. Philips, 2 Atk. 48; Lloyd v. Spillat, 3 P. Wms. 344, 346; Central Tr. Co. v. Valley R. Co., 55 Fed. R. 903.

11 Trustees v. Greenough, 105 U. S. 527; Central R. & B. Co. v. Pettus, 113 U. S. 116: Ex parte Jaffray, In re Waite & Crocker, 1 Low. 321; Ex parte Plitt, 2 Wall. Jr. 453; Stewart v. C. & O. C. Co., 5 Fed. R. 149.

12 Bennet v. Going, 1 Molloy, 527; Hare v. Rose, 2 Ves. Sen. 558. See, however, Mason v. Codwise, 6 J. Ch. (N. Y.) 183.

13 Trustees v. Greenough, 105 U. S. 527; Stewart v. C. & O. C. Co., 5 Fed. R. 149.

14 Ex parte Plitt, 2 Wall. Jr. 453; Fechheimer v. Baum, 43 Fed. R. 719, 730; Central Tr. Co. v. Condon (C. C. A.), 67 Fed. R. 84, 111; D. G. Tompkins Co. v. Chester Mills, 90 Fed. R. 37. But see Weed v. Central Ga. Ry. Co., 100 Fed. R. 162. See U. S. v. Boyd, 79 Fed. R. 858. In such a case, where the order appointing the receiver was reversed, the allowance of compensation to the solicitor who procured the appointment was also set aside. Jacksonville, T. & K. W. Ry. Co. v. American Const. Co., 57 Fed. R. 66.

15 Bennet v. Going, 1 Molloy, 529. 16 Humphrys v. Moore, 2 Atk. 108; Davy v. Seys, Moseley, 204.

even though the creditor thus sweeps away the entire estate.1 Not so, however, when a bill is filed by one creditor in behalf of himself and the rest for a general administration of assets; in which case the personal representative is always entitled to his costs out of the fund unless he has forfeited them by his misconduct.18 Where the laches or inaction of the trustee under a mortgage has caused a suit by a bondholder or a junior incumbrancer to preserve the mortgaged property, and his action in the suit has been of no special value to the fund, he may be disallowed compensation from the fund until after satisfaction of the beneficiaries who appeared by their own counsel in the suit.19

§ 336. Costs as between solicitor and client.- Costs payable out of a fund in court are termed costs as between solicitor and client.1 Costs as between solicitor and client include all reasonable expenses and counsel fees, and are not, like costs as between party and party, confined to the amount named in the statute. Five per centum of the fund collected was held a reasonable counsel fee in such a case, when the fund was large, that is, more than seventy-five thousand dollars. Ten per centum of the fund collected was held a reasonable counsel fee in such a case, when the fund was less. In no case,

17 Adair v. Shaw, 1 Sch. & Lef. 243; 280; Uvedale v. Uvedale, 3 Atk. 117. 18 Bennet v. Going, 1 Molloy, 529; Young v. Everest, 1 R. & M. 426; Minuse v. Cox, 5 J. Ch. (N. Y.) 441.

19 See D. A. Tompkins Co. v. Chester Mills, 90 Fed. R. 37; Bound v. South Carolina Ry. Co., 59 Fed. R. 509.

success, it was held that one-third of the fund collected, $91,420, should be allowed them. Frink v. McComb, 60 Fed. R. 486. Twenty per cent. of $25,000 was held to be a reasonable contingent fee when the amount not specified in the agreement between client and attorney. St. Louis, I. M. & S. Ry. Co. v. Clark, 51 Fed. R. 483.

§ 336. Trustees v. Greenough, 105 Where an attorney had asked for a U. S. 527.

2 Trustees v. Greenough, 105 U. S. 527; Cowdrey v. G., H. & H. R. Co., 93 U. S. 352; Ex parte Jaffray, In re Waite & Crocker, 1 Low. 321; Ex parte Plitt, 2 Wall. Jr. 453.

3 Fechheimer v. Baum, 43 Fed. R. 719; Central R. & B. Co. v. Pettus, 113 U. S. 116, 128. Where counsel were paid $2,000 for disbursements and it was agreed that their compensation should be liberal in case of

payment on account, it was held that he had not thereby waived his contract right to a liberal contingent fee. Frink v. McComb, 60 Fed. R.

486.

4 Where the amount collected was $35,869.77, the plaintiff's counsel was allowed ten per cent. thereof. Harrison v. Perea, 168 U. S. 311, 317. See also Adams v. Kepler M. Co., 38 Fed. R. 281. As to the extent of an attorney's lien, see Mass. & So. Const. Co.

S

however, will the personal expenses and compensation for the personal services of a person, not a trustee, who has engaged in litigation in behalf of himself and others, be included in them." § 337. Taxation of costs.- Costs as between party and party are taxed by a judge or clerk of the court upon notice to the adverse party, and are included in and form a portion of the judgment or decree. To each bill of costs should be attached an affidavit by some person acquainted with the facts, stating that the services for which fees are charged were performed.2 It has been said that the court will not on the taxation enforce a stipulation that disbursements not allowed by rule or statute may be included in the bill of costs. The bills when taxed must be filed with the papers in the cause. When the

5

taxation is by the clerk, a motion for a retaxation of the costs may be made before, or an appeal taken to, a judge of the court. A party who objects to a charge in lump should demand a specification of the items of which it is composed." Where there is a dispute as to a question of fact, material to the taxation of a bill of costs, a reference may be had to an auditor. Costs as between solicitor and client are taxed by the court, usually by means of a reference to a master. has been held that a Circuit Court of Appeals may reverse a decree for an error in taxing costs as between party and party.9 An appeal lies from a decree awarding costs as between solicitor and client.10 Upon such an appeal, the court may re

v. Tp. of Gill's Creek, 48 Fed. R. 145; Claflin v. Bannett, 51 Fed. R. 693; Coe v. Western R. Co., 65 Fed. R. 16. A State statute regulating the allowances in a partition suit was followed by a Federal court of equity. Willard v. Serpell, 62 Fed. R. 625.

527.

It

8 Trustees v. Greenough, 105 U. S. 527; Central R. & B. Co. v. Pettus, 113 U. S. 116; Cowdrey v. G., H. & H. R. Co., 93 U. S. 352.

9 The City of Augusta (C. C. A.), 80 Fed. R. 297. 307, citing O'Reilly v. Morse, 15 How. 62, 124; Burns v.

Trustees v. Greenough, 105 U. S. Rosenstein, 135 U. S. 449, 456. But

§ 337. U. S. R. S., § 983.

see Du Bois v. Kirk, 158 U. S. 58, 67; Gamewell F. A. Tel. Co. v. Municipal

2U. S. R. S., § 984; Jerman v. Stew- Signal Co. (C. C. A.), 77 Fed. R. 490; art, 12 Fed. R. 271.

3 Lee v. Simpson, 42 Fed. R. 434. 4 U. S. R. S., § 983.

5 Re Strauss v. Meyer, 22 Fed. R. 467; Tuck v. Olds, 28 Fed. R. 883.

Dedekam v. Vose, 3 Blatchf. 153. 7 Bottomley v. U. S., 1 Story, 153.

Blanks v. Klein (C. C. A.), 78 Fed. R. 395, and cases there cited.

10 Where the Supreme Court affirmed a decree with costs of the Circuit Court as well as of the Supreme Court, it was held that the Circuit Court had no power to grant costs

verse the decree if the costs have been awarded upon erroneous principles;" but will very rarely do so merely because it considers the sum allowed for a counsel fee too large.12

§ 338. Security for costs. A complainant who does not reside within the district may be compelled to give security for costs. Such security may also be required of a non-resident defendant to a bill of interpleader when he takes aggressive action. In order to obtain an order compelling such security, the defendant must move for it as soon as he ascertains the plaintiff's residence. If he takes after such discovery any step in the cause before moving, it seems that he thereby waives his right to security, unless a necessity for unforeseen disbursements, such as the expense of a reference, subsequently arises." Upon a failure to file security when required, the plaintiff's proceedings will be stayed. A plaintiff's proceedings may also be stayed until he pays the costs of another suit between the same parties upon the same cause of action in which he was unsuccessful, even if that other suit was in a State court, or a Federal court in another district, and, it has been held, when the other suit was in forma pauperis. When one of several plaintiffs is a resident of the district, it seems that no security for costs will be required.10 If the defendant do not demand security for costs within a reasonable time, that such security has not been given will not, when the cause is called for trial,

as between solicitor and client out of the fund. Mason v. Pewabic Mining Co., 153 U. S. 361, 366.

11 Trustees v. Greenough, 105 U. S. 527; Central R. & B. Co. v. Pettus, 113 U. S. 116.

12 Trustees v. Greenough, 105 U. S. 527; Stuart v. Boulware, 133 U. S. 78; Sloan v. Mitchell (C. C. A.), 72 Fed. R. 89. But see Central R. & B. Co. v. Pettus, 113 U. S. 116.

§ 338. Lyman V. & R. Co. v. Southard, 12 Blatchf. 405. But see Woodworth v. Sherman, 3 Story, 171. The Minnesota rule requiring the plaintiff in every case to give security for costs means only the clerk's costs. Robinson v. Honstain, 79 Fed. R. 678. 2 Gross & Phillipps Mfg. Co. v. Gerhard, 8 Rep. 136.

3 Migliorucci v. Migliorucci, 1 Dick. 147; Foster v. Swasey, 2 W. & M. 217; Bliss v. Brooklyn, 10 Blatch. 217; Prince v. Towns, 33 Fed. R. 161.

4 Migliorucci v. Migliorucci, 1 Dick. 147; Foster v. Swasey, 2 W. & M. 217; Bliss v. Brooklyn, 10 Blatchf. 217; Prince v. Towns, 33 Fed. R. 161. But see Stewart v. The Sun, 36 Fed. R. 307. 5 Uhle v. Burnham, 46 Fed. R. 500. 6 Fox v. Blew, 5 Madd. 147.

7 Buckles v. C., M. & St. P. R. Co., 47 Fed. R. 424.

8 Kimble v. Western Union Tel. Co., 70 Fed. R. 888.

9 Ibid.

10 Winthrop v. Royal Exch. Ass. Co., 1 Dickens, 282; Walker v. Easterby, 6 Ves. 612; Gilbert v. Gilbert, 2 Paige Ch. (N. Y.) 603.