FOSTER v. ELK FORK OIL & GAS CO. et al., 99 F. 617

SIMOISTTOU, Circuit Judge. This case comes up on appeal from the circuit court of the United States for the district of West Virginia. In the decree of that court of December 22, 1898, exceptions to which have been heard in this court and determined at this term, certain questions were reserved. Among these was the payment of the costs of a reference before J. W. Ewing, master. On the 11th of April, 1899, the circuit court decided this question of costs, and required George E. Foster to pay them. To this decision exception was taken, an appeal was allowed, and it is now before this court.

While it is the general rule that in a suit at law the losing party must pay costs (Kittredge v. Race, 92 U. S. 116, 23 L. Ed. 488), in equity costs are in the discretion of the court (Daniel, Ch. PI. & Prac. 1462). In the courts of the United States an appeal does not lie from a decree for costs. Fabrics Co. v. Smith, 100 U. S. 110, 35 L. Ed. 458; Paper-Bag Cases, 105 U. S. 766, 26 L. Ed. 959. The exception is when the costs are made payable out of a fund in court. Trustees v. Greenough, 105 U. S. 527, 26 L. Ed. 1157. This is conclusive of the appeal in this case.

The decree of the circuit court in this respect is affirmed.