this decree in awarding full costs to the plaintiff. Canter v. American Ins. Co., 3 Pet. 307; United States v. The Malek Adhel, 2 How. 210, 227; The Sapphire, 18 Wall. 51; Kittredge v. Race, 92 U. S. 116, 120. This court has held in several cases that an appeal does not lie from a decree for costs, and, if an appeal be taken from a decree upon the merits, and such decree be affirmed with respect to the merits, it will not be reversed upon the question of costs. Elastic Fabrics Co. v. Smith, 100 U. S. 110, 112; Paper Bag Cases, 105 U. S. 766, 772; Wood v. Weimar, 104 U. S. 786, 792; Russell v. Farley, 105 U. S. 433, 437."

Case No. 6. City Nat. Bank v. Hunter (1894) 152 U. S. 512, 14 Sup. Ct. 675.

The court said: "If the sum in dispute on this appeal was sufficient to give us jurisdiction, we could consider the question of costs, referred to in the second assignment of error; but, as the appeal in respect to interest must be dismissed for want of jurisdiction, the appeal in respect to costs must also be dismissed. No appeal lies from a mere decree for costs. Canter v. American Ins. Co., 3 Pet. 307, 319; Wood v. Weimar, 104 U. S. 786; Paper Bag Cases, 105 U. S. 766.”

Case No. 7. Citizens' Bank v. Cannon (1896) 164 U. S. 319, 17 Sup. Ct. 89.

The court said: "As a general rule, an appeal will not lie in a matter of costs alone; but such appeals have been sustained in particular circumstances, as, for instance, where the costs have been directed to be paid out of a trust fund. In Trustees v. Greenough, 105 U. S. 528, this court said, through Mr. Justice Bradley, that

the objection to an appeal on the ground of its being from a decree for costs only is untenable. However, in the present case the appeal was not taken from the decree on the sole ground that costs were wrongfully awarded, and, as the entire decree is before us, it is competent for us to consider whether, when a circuit court dismisses a suit for want of jurisdiction, it can give a decree for costs, including a fee in the nature of a penalty, to the defendants' counsel.

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"Without considering or deciding whether it would be the duty of a federal court to follow the state statute in assessing costs, and particularly in making a payment to an attorney at law of a fee proportionate to the amount recovered a part of the decree, we are of opinion that this decree was erroneous in the particular complained of. Having dismissed the bill for want of jurisdiction, the court was without power to decree the payment of costs and penalties."

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CHAPTER XXXVI.

WHAT COSTS BELONG TO PARTIES AND WHAT TO ATTORNEYS.

Case No. 1. Collins v. Hathaway (1845) Olc. 176, Fed. Cas. No. 3,014.

Betts, J., said: "The assumption that parties obtain, personally, the costs awarded on the decision of a suit in prosecution, is essentially erroneous. It is so only theoretically. The general decree gives the costs nominally to a party in the action, but in reality nothing passes by it into his hands, beyond the reimbursement of witnesses' fees, or advances actually made by him to-other ends than the payment of his proctors' and advocates' fees. The taxed costs belong to them, and their rights thereto will be protected by the court against the exercise of any authority over them by the party himself to their prejudice."

Case No. 2. In re United States v. Cigars (1880) 2 Fed. 494.

It was held: "The distinction between costs to which a successful party is entitled and fees belonging to an officer is well understood by the profession, and is judicially stated by the court in Musser v. Good, 11 Serg. & R. 248, and again in Beale v. Commonwealth [7 Watts, 186], before cited. In the former case the

Tax'n Costs-29.

court says: 'Costs are an allowance to a party for expenses incurred in conducting his suit. Fees are a compensation to an officer for services rendered in the progress of the cause."

Case No. 3. Goodyear v. Sawyer (1883) 17 Fed. 3. Referring to the taxing of a docket fee, Hammond, J., said: "Like the fees of the clerk or marshal, those of an attorney or solicitor are payable to him by the party for whom the services are rendered (his client, in the case of an attorney), but are taxable, under certain circumstances, as costs against the losing party in favor of the prevailing party at law, and as the court may direct in equity. Rev. St. § 823; Caldwell v. Jackson, Cranch, 276; Anonymous, 2 Gall. 101, Fed. Cas. No. 445; In re Stover, 1 Curt. 201, Fed. Cas. No. 13,507; Lessee v. Arbuncle, Pet. C. C. 233, Fed. Cas. No. 1,742; In re United States v. Cigars, 2 Fed. 494."

Case No. 4. Celluloid Mfg. Co. v. Chandler (1886; Mass.) 27 Fed. 9.

Judge Webb said: "This act of February 26, 1853 (10 Stat. 161), substituted, in all the federal courts, for the state practice, its own provisions. Before its passage, the costs, though made to conform to the allowance for the same items in the courts of the respective states, were distinctly taxed and allowed 'in favor of parties obtaining judgment.' Act 1793, c. 20, § 4 (1 Stat. 332). That to secure this uniform rule was the object of the statute is plain, and there is no reason to conclude there was a further purpose to change the party in whose favor the allowance was made, and to take the costs from the party to the suit, and give

them to the attorney. The bill of costs primarily belongs to the successful party. It is included in his judgment. It is not the attorney's, though he has a lien upon it.' Clay v. Moulton, 70 Me. 315. 'In strictness, all the items included in the bill of costs belong to the party.' Cooly v. Patterson, 52 Me. 472.

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"But though the taxable costs, as such, neither belong primarily to the attorney by force of any law, and have not been shown to be his by force of any usage that they shall be considered to belong to him, he is still entitled to reasonable compensation for his services.”

Case No. 5. Aiken v. Smith (1893) 6 C. C. A. 414, 57 Fed. 423.

The court said: "Under this statute, the fees of the clerks, marshals, commissioners, and proctors are their individual property, and not that of the suitors or parties to the cause wherein they have been earned. In re United States v. Cigars, 2 Fed. 495; The Baltimore, 8 Wall. 392. The law was the same prior to the passage of the fee bill of 1853 (now section 823 et seq., Rev. St.), and was so held in Collins v. Hathaway, Ole. 177, Fed. Cas. No. 3,014."

Case No. 6. The Mount Eden (1898) 87 Fed. 483. De Haven, J., said: "The docket fee thus allowed is the individual property of the proctor, not that of the libelant. Aiken v. Smith, 6 C. C. A. 414, 57 Fed. 423."

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