Page:Federal Reporter, 1st Series, Volume 7.djvu/464

e52 FEDBBAL BBPOBTEB. �is set aside and a new trial is granted. The very granting of a new trial implies that the proceedings which resulted in the prior verdict was a trial. The docket fee is allowed for "a; trial." Each trial is a trial, and a docket fee of $20 for each trial is allowable now, although the verdict at the first trial was for the plaintiff, and although the first verdict for the defendant was set aside. The present verdict for the defend- ant gives him a right to now tax in his favor the three docket fees. The practice in the state courts of New York is to the same effect. Hamilton v. Butler, i Rob, 654; Strong v. Day, H How. Pr. Eep. 390; Howell v. Van Siclen, 8 Hun. 524. �Note. In the Say Oity, 3 Ped. Rhp. 47, the court held that the fee was taxable under section 824, whenever the trial was entered upon by the swearing of a jury in a common-law case, or by the introduction of tes- timony, or the final opening of the argument upon a final hearing in equity or admiralty. " The fee," said the court, " is not made by the statute to depend upon a judgment or decree, but is taxable on a trial or final hearing." The fee was therefore allowed in that case, which was a suit in admiralty, upon a discontinuance by the libellant after the evi- dence upon both sides had been concluded. In Shafer v. Oarr, 6 Fbd. Rep. 466, in an action by an assignee to recover the assets of a bankrupt, two trials were had, but the jury disagreed in both instances, and the case was flnally discontinued. Under these circumstances it was held that there had been no " trial before a jury," within the terms of section 824, which would authorize a taxation of a docket fee of $20. �Ih this connection, a reference to the case of Osborn v. Osborn, 5 Fed. Ref. 389, may not be inappropriate. In that suit, which was equitable in its characler, certain questions had been submitted to a jury, uuder the provisions of a state statute, but by reason of a disagreement no verdict was found. The court there held that there had been no such final hear- ing or trial in the state court as would prevent the case from beini^ removed into the federal court under the provisions of the "Local Preju- dice Act." " The verdict of the jury," said the court, " becomes a neces- sary part of the final trial of the case." — [Ed. ��� �