In equity, the giving of costs is entirely discretionary, as well with respect to the period at which the court decides upon them' as with respect to the parties to whom they are given.
In the exercise of their discretion, courts of equity are generally governed by certain fixed principles which they have adopted on the subject of costs. It was the rule of the civil law that victim victori in expenais con demnatus eat; and this is the general rule adopted in courts of equity as well as in courts of law, at least to the extent of throw ing it upon the failing party to show the existence of circumstances to displace the prima facie claim to costs given by success to the party who prevails; 3 Dan. Ch. Pr. 1515.
In patent cases in equity costs will not be allowed a plaintiff where some of the claims are withdrawn at the argument and some adjudged invalid, though others are sustained; Thomson-Houston Electric Co. v. R. Co., 71 Fed. 886. ' An executor or administrator suing at law or in equity in his representative capacity is not personally liable to the opposite party for costs in case he is unsuccessful, if the litigation were carried on in good faith for the benefit of the estate;, Gratz v. Bayard,
11 S. & R. (Pa.) 47; Callender's Adm'r v. Ins. Co., 23 Pa. 471. But the rule is otherwise where vexatious litigation is caused by the executor or administrator, and where he has been guilty of fraud or misconduct in rela tion to the suit; 1 Wms. Exec. 451; Show v. Conway, 7 Pa. 136, 137.
Costs, when recovered, belong to the client; Celluloid Mfg. Co. v. Chandler, 27 Fed. 12.
In divorce, the wife's costs can be taxed de die in diem; Graves v. Cole, 19 Pa. 171, citing 2 Hagg. Cons. 204.
Ordinarily an appeal does not lie from a decree for costs only in a chancery suit ; but there are exceptions to the rule, turning on the question of the discretionary power of the trial court respecting costs. A decree for such costs as are discretionary is not appeal able, but one for costs not in the discretion of the court is appealable if the amount is sufficient to confer jurisdiction ; Nutter v. Brown, 58 W. Va. 237, 52 S. E. 88, 1 L. R. A. (N. S.) 1083, 6 Ann. Cas. 94.
See DOUBLE COSTS; TREBLE COSTS; SURETY COMPANY; ACTUAL.