CHAPTER 55. COSTS. § 1822. Cross references. § 1824. § 1823. When poor person may sue without paying costs, etc. -assignment of counsel,-dismissal-costs on judgment—against § 1825. § 1826. § 1827. § 1828. § 1829. Costs in infringement of patent. § 1830. § 1831. 1832. § 1833. § 1834. No costs to plaintiff in circuit court if recovery below certain sum. Informer on penal statute to pay costs if nonsuit or discontinu ance. -or if judgment rendered for defendant. Limit of costs where several suits filed instead of joint action. Costs in case of several libels or informations against vessel or § 1835. Successful claimant after seizure entitled to possession when his costs paid. § 1836. District attorneys costs limited to one action when several sep arately brought. § 1837. United States liable for only four witness fees on preliminary criminal examinations. § 1838. Attorney liable for costs vexatiously increased. § 1839. Bill of costs how taxed. § 1840. Bill of costs to be sworn to. § 1841. § 1842. Costs in State court taxable after removal. § 1843. Costs on dismissal in appellate court. § 1844. -on affirmance. § 1845. -rule on reversal in Supreme Court. § 1846. -in neither case is United States liable. § 1847. -provisions apply to review under act of 1891. § 1853. -rule in circuit court of appeals. § 1854. -printing briefs and opinions as taxable costs. § 1822. Cross references. Provisions as to costs in suit on a marshal's bond,1 as to costs in searches and seizures2 and in the Court of Claims are given in earlier chapters. Elsewhere also are two provisions respecting costs in internal revenue suits. In suits improperly commenced in or removed to the circuit court, the court on dismissal or remand "shall make such orders as to costs as shall be just."5 Fees as an element of taxable costs are considered in the chapter on fees. Fees and costs in bankruptcy are considered in a later chapter.7 Elsewhere also are provisions as to costs in extradition proceedings,8 in suits on government contractors' bonds." Author's section. § 1823. When poor person may sue without paying costs, etc. Any citizen of the United States, entitled to commence any suit or action in any court of the United States, may commence and prosecute to conclusion any such suit or action without being required to prepay fees or costs, or give security therefor before or after bringing suit or action,[a]-[blupon filing in said court a statement under oath, in writing, that, because of his poverty, he is unable to pay the costs of said suit or action which he is about to commence, or to give security for the same, and that he believes he is entitled to the redress he seeks by such suit or action, and setting forth briefly the nature of his alleged cause of action. [c] § 1, of act July 20, 1892, c. 209, 27 Stat. 252, U. S. Comp. Stat. 1901, p. 706. [a] Scope of act. The act does not apply to proceedings in the United States Supreme Court, hence an application thereunder for leave to prosecute a writ of error without giving the required security has been dismissed.12 Whether the act applies to civil proceedings in the circuit court of appeals apparently depends on the particular circuit. In the sixth circuit the rule is established that the act applies,13 and the same is true in the first circuit.14 1 Ante, § 629. 2 Ante, §§ 1520, 1521. 3 Ante, § 1490. 4 Ante, §§ 1415, 1416. 5 Ante, § 1154. 6 Ante, § 704, et seq. 7 Post, §§ 2214 et passim. 8 Ante, § 1660. 12Gallaway v. Ft. Worth Bank, 186 U. S. 177, 46 L. ed. 1111, 22 Sup. Ct. Rep. 811. 13 Reed v. Pennsylvania Co. 111 Fed. 714, 49 C. C. A. 572; Fuller v. Montague, 53 Fed. 206; Brinkley v. Louisville, etc. R. Co. 95 Fed. 345. 14 Columb v. Webster, etc. Co. 76 9 Ante, §§ 1420, et seq. For other Fed. 198; Volk v. Sturtevant Co. 99 provisions see the Index. Fed. 532, 39 C. C. A. 646. In the fifth circuits however it is held that the act does not apply to appellate proceedings.15 The application of the act in cases of appellate proceedings in criminal cases is also denied.16 The word "costs" as used in this section means taxable costs to be recovered by the adverse party and the statute intends that no security or deposit shall be required therefor. "Fees" means, as respects the clerk, his fees in the strict sense of the word and does not relate to his disbursements.17 [b] Petitioner need not prepay fees, etc. The act provides that the clerk cannot demand fees and costs in advance but it does not take away from him the right to charge and recover for his services and he is entitled to a lien on any judgment recovered.1 Thus, where a libelant who sues in admiralty in forma pauperis recovers judg ment without costs for a sum of money which is paid into the register of the court he cannot withdraw the same without payment of the fees of the clerk. Where the plaintiff suing in forma pauperis takes a nonsuit after the court has directed a verdict against him a subsequent action by him for the same cause in another district will be stayed until he pays the costs in the first.3 [c] Sufficiency of affidavit. The citizenship of the applicant for leave to sue in forma pauperis must affirmatively appear in the affidavit. It must appear also that he is unable to give security for costs and that he believes he is entitled to the redress he seeks.7 These are statutory requirements not to be evaded, and a showing in forma pauperis in compliance with a court rule is insufficient.8 While the personal affidavit of the plaintiffs and of each who is sui juris, seems to be required,10 an affidavit by a widow of the poverty of her infant child was held sufficient.11 The affidavit ought to be sufficiently certain to uphold indictment for perjury if false, with the least possible chance for evasion in its terms.12 Where the plaintiff sues as administratrix the petition must set forth the financial condition of the estate, since it may be in a position to furnish the necessary funds.13 Likewise where the plaintiff has made a contract with his attorney to prosecute the suit for a fee contingent on recovery, a State statute giving the attorney a lien on 15 The Presto, 93 Fed. 522, 35 C. Donovan v. Salem, etc. Co. 134 Fed. C. A. 394. 317. 16 Bristol v. United States, 129 Fed. 87, 63 C. C. A. 529. 7 Donovan v. Salem, etc. Co. 134 Fed. 317; Volk v. Sturtevant, 99 Fed. 17 Columb v. Webster Mfg. Co. 70 532, 39 C. C. A. 646. Fed. 198. 8 Donovan v. Salem, etc. Co. 134 1 Columb v. Webster Mfg. Co. 76 Fed. 317. Fed. 200. 2 Davis v. Adams, 109 Fed. 271. 3 Kimble v. Western Union Tel. Co. 70 Fed. 888. 6 Volk v. Sturtevant Co. 99 Fed. 532, 39 C. C. A. 646; Boyle v. Great Northern R. Co. 63 Fed. 539; see also 10 Reed v. Pennsylvania, etc. Co. 111 Fed. 714, 49 C. C. A. 572. 11 McDuffee v. Boston, etc. R. Co. 82 Fed. 865. 12 Woods v. Bailey, 111 Fed. 121. 13 Volk v. Sturtevant Co. 99 Fed. 532, 39 C. C. A. 646. the proceeds of the suit, the petition must set forth that the attorney is a In a case arising in the poor person within the meaning of the act.14 second circuit the court intimated that the petition should contain a further affidavit setting forth the facts which the plaintiff expected to prove thereby showing that the cause of action was not malicious or frivolous.15 § 1824. affidavit after suit brought-perjury therein. After any such suit or action shall have been brought, or that is now pending, the plaintiff may answer and avoid a demand for fees or security for costs by filing a like affivadit, and willful false swearing in any affidavit provided for in this or the previous section, shall be punishable as perjury as in other cases. § 2 of act July 20, 1892, 27 Stat. 252, c. 200, U. S. Comp. Stat. 1901, p. 707. An affidavit filed after action brought as authorized by the above section, was held to be in due season though it was not filed in answer to a motion for a cost bond, but after an order granting the motion.19 § 1825. - such poor persons entitled to process, etc. The officers of court shall issue, serve all process, and perform all duties in such cases, and witnesses shall attend as in other cases, and the plaintiff shall have the same remedies as are provided by law in other cases. § 3, of act July 20, 1892, c. 209, 27 Stat. 252, U. S. Comp. Stat. 1901, p. 707. Refusal of clerk or marshal to comply with the statute after a sufficient affidavit of poverty is filed may be remedied by an order of the court upon them in a summary proceeding.1 § 1826. assignment of counsel,-dismissal-costs on judgment -against United States. The court may request any attorney of the court to represent such poor person,' [a] if it deems the cause worthy of a trial, and may dismiss any such cause so brought under this act if it be made to appear that the allegation of poverty is untrue, or if said court be satisfied that the alleged cause of action is frivolous or malicious.[b] Judgment may be rendered for costs at the conclusion 14 Feil v. Wabash R. Co. 119 Fed. 490; Boyle v. Great Northern R. Co. 63 Fed. 539. 19 McDuffee v. Boston, etc. R. Co. 82 Fed. 865. 1 Columb v. Webster Mfg. Co. 76 15 Whelan v. Manhattan R. Co. 86 Fed. 198. Fed. 219. of the suit, as in other cases: Provided, That the United States shall not be liable for any of the costs thus incurred. §§ 4, 5 of act July 20, 1892, c. 209, 27 Stat. 252, U. S. Comp. Stat. 1901, p. 707. [a] Attorney assigned by court. An attorney assigned by the court pursuant to the above section is entitled to compensation only in event of success. In such case he may apply to the court for an order fixing a fair compensation for the services he actually renders, out of the sum recoverable.5 [b] Investigation of truth of affidavit. The practice is not uniform as to the time when the truth of the allegation of the poverty is to be determined. It seems to be well settled in the second circuit that on filing an affidavit in proper form the party is entitled to proceed with the case in forma pauperis leaving it to the opposite party to contest the truth of the affidavit on a motion to dismiss.6 In the sixth circuit however it is held that upon the presentation of an affidavit the court may inquire into the facts and grant or refuse relief according as it is found true or otherwise; 7 and such preliminary investigation seems also to be favored in the eighth district.s Where the petition to obtain the benefit of the act was adjudged insufficient on account of a mere slip in the form of the oath, and security was ordered, it was held the application might be renewed on sufficient petition.9 § 1827. No costs to plaintiff in circuit court if recovery below certain sum. When, in a circuit court, a plaintiff in an action at law originally brought there, or a petitioner in equity,[a]-[b] other than the United States, recovers less than the sum or value of five hundred dollars, exclusive of costs, in a case which cannot be brought there unless the amount in dispute, exclusive of costs, exceeds said sum or value; or a libelant, upon his own appeal, recovers less than the sum or value of three hundred dollars, exclusive of costs, he shall not be allowed, but, at the discretion of the court, may be adjudged to pay costs.[c] R. S. § 968, U. S. Comp. Stat. 1901, 5 Whelan v. Manhattan R. Co. 86 Fed. 219. 6 Woods v. Bailey, 113 Fed. 390; McDuffee v. Boston, etc. R. Co. 82 Fed. 865; see also Wickelman v. Dick Co. 85 Fed. 851, 29 C. C. A. 436; but see Whelan v. Manhattan R. Co. 86 Fed. 219. p. 702. 7 Boyle v. Great Northern R. Co. 63 Fed. 539; Brinkley v. Louisville, etc. R. Co. 95 Fed. 345. 8 Whittle v. St. Louis R. Co. 104 Fed. 286. 9 Woods v. Bailey, 113 Fed. 390. |