eoommr:. v. sxwrmt. 5
prevails in other states as well as this, and which, no doubt, influ-
ences legislators, as well as the bar and bench, it is misleading to
overlook the tendency in construing statutes or adjudicating matters
of practice like this now before us. I shall, therefore, treat these cases
as if that were done which the parties intended to be done, namely,
as having been dismissed upon the application of the plaintiffs. If
_ proper orders have not been entered by the court to effectuate that
result, it may now be done. The case of dismissal after a decree for
an account is somewhat peculiar; but there is no doubt that the
plaintiff may, either by consent, or without it if the defendant has
no special interest to protect, procure an order to dismiss after a
decree ordering an account. 1 Daniel}, Ch. Pr. 793, 810, 811.
But the mistake the plaintiff makes here is to claim that because
on the hearing he procured a decree for an account and for costs he
is the prevailing party, and no docket fee can be taxed. That was
an interlocutory decree in the sense of the practice in matters of
costs, and, whatever may be its effect as to other costs, had nothing
to do with the docket fee, which is to be decreed only on a “final
hearing." I think, moreover, if the plaintiff dismisses after a decree
for account and inquiries, the order of dismissal necessarily revokes
the former decree for account and costs, and the defendant is entitled
to his full costs, as when the bill is dismissed on application of the
plaintiff in other cases; but it is not necessary to decide that in this
case, it being clear that the judgment given for costs against the de-
fendant by the decree for the account did not apply to the docket fee.
That fee is left to the "final hearing" for allowance and taxation.
r . \Ve have, then, the simple question presented whether the defend-
ant is entitled to recover a docket fee for his solicitor, to be taxed
when the plaintiff takes an order to dismiss his bill in the ordinary
way, or "without prejudice." It is a question between party and
party, and one arising under the law of costs as applicable to a court
pf equity, and not one between the attorney and his client, or the
attorney and the losing party. 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 los-
ing party in favor of the prevailing party at law, and as the court may
direct in equity. Rev. St.§ 823; Caldwell v. Jackson, 7 Cranch, 276;
Anon. 2 Gall. 101; In re Stover, 1 Curt. 201; Lessec V. Arbuncle,
Pet. C. G. 233; In rc U. S. v. Cigars, 2 FED. Rss. 494.
~ Of course, not all the charges of the attorney against his client
were taxable as costs, but certain special items were, under the gen-
eral law. In some states, notably Tennessee, this allowance of costs
to attorneys never prevailed, mostly for the reason that under the
practice the services usually performed by the attorney, for which
the charges were taxable, were relegated to the clerk or sheriff. But
in other states, as in New York, it was customary to tax attorney’s