
    FREY & SON, Inc., v. WELCH GRAPE JUICE CO.
    (District Court, D. Maryland.
    June 21, 1917.)
    Costs <§=>244 — Reversal with Costs.
    Where the first trial of an action resulted in a mistrial, and the second trial in a verdict for defendant, and the judgment was reversed, “with costs,” all of the costs of both trials were taxable against defendant, in view of the long-established custom, both in the federal and in the state Gourts, that when the mandate is in that form all the costs up to that time incurred in the court below are taxed against the defendant in error.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 940-946.]
    At Raw. Action by Frey & Son, Incorporated, against the Welch Grape Juice Company. On exceptions to the clerk’s taxation of costs.
    Exceptions overruled.
    Horace T. Smith, of Baltimore, ‘Md., for plaintiff.
    John Hinkley, of Baltimore, Md., for defendant.
   ROSE, District Judge.

This case has now been tried three times. At the first trial there was a hung jury. The second trial resulted in a verdict for the defendant. The plaintiff sued out a writ of error, and the Circuit Court of Appeals reversed the judgment with costs. 240 Fed. 114, - C. C. A. -.

Upon receipt of the mandate, the clerk of this court, in accordance with the ordinary practice when a mandate comes down in that form, taxed all the costs for both trials below against the defendant. The defendant excepted to the taxation of any of the costs below against it, and, in the alternative, to thé taxation against it of the costs of the first trial. The custom both in the United States and state courts of Maryland, when the mandate from the appellate court is in the form used in this case, is to tax against the defendant in error all the costs up to that time incurred in the court below. The experienced clerks of the state and federal courts say they are not aware in their experience of more than a quarter of a century of any exceptions to this practice, although they are not able to recall whether or not the precise case of a mistrial, and a verdict for the defendant in the second trial, and a reversal of the judgment entered thereon by the appellate court, has ever before arisen.

As the verdict and judgment are now for the plaintiff, defendant’s exceptions to the clerk’s taxation of the costs will necessarily be overruled; but, had the result of the third trial been different from what it was, I would not have felt justified in sustaining defendant’s exceptions, or either of them, in view of the language of the Circuit Court of Appeals, employed, as it was, after the construction of such language in this district was of so long standing.

They will therefore he overruled.  