"At common law, costs were not given to either party. By 6 Edw. I. c. 1, commonly called the 'Statute of Gloucester,' costs were given in all cases to the party recovering damages, de incremento, as an increase or increment of the judgment. The act of Feb. 26, 1853 (10 Stat. 161), provides what attorney's fees and items of expense are taxable as costs in the national courts. Dedekam v. Vose, 3 Blatchf. 153, Fed. Cas. No. 3,731; Parker v. Bigler, 14 Leg. Int. 180, Fed. Cas. No. 10,726; Lyell v. Miller, 6 McLean, 422, Fed. Cas. No. 8,620; The Baltimore, 8 Wall. 388. The statute of Gloucester is considered a part of the law which our ancestors brought to this country from England, and is in force here, and governs the question who is entitled to costs in this case. unless a different rule has been prescribed by statute. Hathaway v. Roach, 2 Woodb. & M. 63, Fed. Cas. No. 6,213. There is no act of congress which directly declares which party is entitled to recover costs, except in a few special cases, of which this is not one."

Then, after commenting upon the decision of Judge Woodbury in Hathaway v. Roach, and the "opinion" of Mr. Justice Nelson in Costs in Civil Cases, and section 5 of the act of June 1, 1872, he said:

“But I think that giving or withholding costs in a particular case is not a mere matter of practice. Costs are of the substance of the controversy, and not the form. They are a part of the judgment, and affect the right of the party, as well as the recovery of the principal sum or thing. Therefore I agree with Mr. Justice Woodbury, in Hathaway v. Roach, supra, that the subject of who shall recover costs in a common-law action is within the purview of section 34 of the judiciary act, which pro

vides: The laws of the several states, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.' (1) In the absence of any act of

*

*

"In conclusion: congress to the contrary, the party recovering damages in this court is entitled, by virtue of the statute of Gloucester, to recover costs, without reference to the amount of such damages. (2) By virtue of section 34 of the judiciary act, section 539 of the Oregon Code, which in effect denies costs to the plaintiff in an action of trover when he recovers less than fifty dollars, is applicable to this action. (3) Section 20 of the act of 1853, supra, specifies what items of costs may be taxed in favor of the prevailing party in cases where, by the Oregon Code, such party is entitled to recover costs, but impliedly denies costs to the losing party in any case; and therefore section 541 of the Oregon Code, which gives costs, of course, to the defendant when the plaintiff is not entitled to them, does not apply to actions in the United States courts.”

Case No. 6. Jerman v. Stewart (1882; Tenn.) 12 Fed. 271.

The disputed items related to fees of justices of the peace for taking depositions, fees of the clerk of the state court for certified transcript, and attorney's deposition fees. Hammond, D. J., said:

"I do not wish to depart from the decisions which hold that, where congress has legislated and allowed no fees, none can be allowed by the courts on the doctrine of reasonable compensation, and, where this plain statute

says that the officers enumerated shall receive certain fees, and none other, that the courts cannot enlarge them. The Baltimore, 8 Wall. 377; Jones v. Schell, 8 Blatchf. 79, Fed. Cas. No. 7,493; Dedekam v. Vose, 3 Blatchf. 153, Fed. Cas. No. 3,731. But here it is obvious that the principle does not apply, because these officials are not mentioned in the act of congress regulating fees, and the omission to provide for them cannot be taken as an intention to deny them all compensation. Nichols v. Inhabitants of Brunswick, 3 Cliff. 88, Fed. Cas. No. 10,239. In Ethridge v. Jackson, 2 Sawy. 598, Fed. Cas. No. 4,541, Judge Deady makes the distinction between the right to costs and the mere mode of taxing them. In trials at law, the former depends on the laws of the state where there is no act of congress, but the latter on the practice of the federal court itself. To the same effect are Field v. Schell, 4 Blatchf. 435, Fed. Cas. No. 4,771, and Burnham v. Rangeley, 2 Woodb. & M. 417, Fed. Cas. No. 2,177. These decisions all show that, from the first, congress had intended that the prevailing party should be allowed his reasonable costs; and although the act under consideration has prescribed certain fees for certain officers, it has omitted to prescribe for others, and the question is whether we shall continue to look to the state law for our analogies in these cases, as we did before that act, or now look to that act itself, where it furnishes the analogy. I see no reason, if congress says a clerk or commissioner shall receive twenty cents a folio for taking a deposition, for holding that, if a judge, justice of the peace, notary public, or other magistrate takes it, he shall receive less."

Case No. 7. United States v. Treadwell (1883; S. D. N. Y.; Brown, J.) 15 Fed. 532.

The point presented was whether defendant, an administratrix, was relieved from payment of costs because there had been no presentation of the claim to her, as required by the state laws. The court, in commenting generally upon the question of costs, said that the act of 1853, now embodied in sections 823, 824, Rev. St., settled the questions discussed in Hathaway v. Roach, Ethridge v. Jackson, and in Costs in Civil Cases, supra; that an important change had been made by section 914 in the revision; and that, while the act of 1853 provided "that, in lieu of the compensation now allowed by law to attorneys," etc., section 823, Rev. St., provides that "the following and no other compensation shall be taxed and allowed to attorneys," etc., and, after quoting section 983, said:

"This section is taken without change from the act of 1853. By section 823, above quoted, it is provided that the fees following 'shall be taxed, except in cases otherwise expressly provided by law,' i. e., by some law of congress, not of the several states. Taking the two sections together, therefore, it would seem to follow necessarily that the fees referred to in section 823 must be taxed in favor of the 'prevailing party,' and 'against the losing party,' in all cases 'except where otherwise expressly provided by law.'

"The language of section 823, by its natural meaning and import, seems to me plainly to cover the whole question of the right to costs, for it declares that the following fees 'shall' be allowed to attorneys, etc., except in cases expressly provided by law, i. e., the attorneys of

the prevailing party shall be entitled to costs in all cases, 'unless otherwise expressly provided by law.'

"I cannot perceive any reason for the change in the phraseology of section 823 from the language of the act of February 26, 1853, § 1, except for the purpose of making this definite provision as to the right to costs, which the act of 1853 did not do. If such is the proper interpretation and construction of section 823, then it supersedes the laws and the practice of the states in reference to the right to recover costs, since those laws are applicable only in the absence of any law of congress on the same subject. Section 721."

Case No. 8. O'Neil v. Kansas City, S. & M. R. Co. (1887; W. D. Tenn.) 31 Fed. 663.

This was an ex parte application by two witnesses, who appeared by counsel, for witness fees, plaintiff taking no part in the application. Judge Hammond said:

"In this and like applications the distinction between fees and costs has been entirely overlooked, the latter being an allowance always given by statute to the party for expenses paid or incurred in conducting his suit. while fees are compensation to an officer or witness or others for services rendered for the party in the progress of the cause. Strictly speaking, the prevailing party to a suit recovers, as costs against his adversary, only the fees which he himself has paid, or is liable to pay, and hence the usual form of judgment was for the recovery, and his costs in this behalf expended.' The claim for fees in a case, therefore, is only good and enforceable against the party to the suit for whom the services were rendered, entitling the claimant to compensation, and not against the losing party, simply because the other