needs to and does ask leave to amend, and who, according to the decision made, was first at fault in pleading. The defendant has no occasion for such leave. If the plaintiff does not amend according to the order, as settled otherwise, the defendant will have final judgment in this cause, although not on the merits. If the plaintiff does amend, the defendant will be entitled to answer the new complaint, under the rules of procedure. Under these circumstances, the taxable costs of the demurrer on the leave to amend must fall upon the plaintiff. Order settled accordingly.”

Case No. 4. Adler v. Lane (1901; 1st Cir.) 46 C. C. A. 165, 107 Fed. 101.

A trustee in bankruptcy filed a bill to have a transfer of a certain lease declared fraudulent. The respondents demurred to the jurisdiction, the demurrer was over ruled, and respondents petitioned for a revision of proceedings in the court of appeals. The complainant afterwards dismissed his bill. The court of appeals said:

"As we understand the law, the petition for review in this case did not have the effect of a writ of error or an appeal from final judgment to remove the case to this court, and therefore the dismissal of the main case was within the province of the lower court, and, as that action compels the dismissal of the case here, we think that the respondent (defendant in this court) should pay the costs."

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CHAFTER III.

AFFIDAVITS.

§ 9. Distinction between Affidavits and Depositions.

10. Affidavits for Use on Motions.

11. Affidavits Used on Final Hearing.

$9. Distinction between affidavits and depositions.

Case No. 1. Stimpson v. Brooks (1856) 3 Blatchf. 456, Fed. Cas. No. 13,454.

Betts, J., said: "Deposition is a generic expression, embracing all written evidence verified by oath, and thus includes affidavits; but in legal language, a distinction is maintained, in courts of law and chancery, between depositions and affidavits. A deposition is evidence given by a witness under interrogatories, oral or written, and usually written down by an official person; while an affidavit is the mere voluntary act of the party making the oath, and may be, and generally is, taken without the cognizance of the one against whom it is to be used. Bacon, Abr. 'Affidavit'; Jacob, Law Dict., 'Affidavit' and 'Deposition'; Wyatt, Pract. Reg. c. 7."

See Indianapolis Water Co. v. American Straw-Board Co. (1895) 65 Fed. 534, for a full discussion of the distinction, the cases, etc.

§ 10. Affidavits for use on motions.

Case No. 1. Stimpson v. Brooks (1856) 3 Blatchf. 456, Fed. Cas. No. 13,454.

There had been a motion for injunction, which was denied, with costs. Defendant charged in his bill of

Tax'n Costs-3.

costs for fourteen affidavits used at the hearing of the motion, at $2.50 each,-$35,-and the clerk allowed the charge. Betts, J., set the taxation aside, on the ground that the statute provided only for proofs admitted on final hearing. It had been the usage of that court to allow such charge prior to the statute of 1853.

Case No. 2. Atwood v. Jaques (1894; W. D. Mo.) 63 Fed. 561.

Philips, D. J., refused to allow the cost of writing the affidavits, citing Stimpson v. Brooks, supra, but said: "But it seems to me, inasmuch as the complainants invited the issue on the application for a temporary injunction, and such applications are heard only upon affidavits, that it would be but equitable and right that the prevailing party should at least be accorded the sums paid out by him to the officer administering the oath and certifying thereto; and therefore I shall allow to the respondent, as costs, the sum of 50 cents for the notary's certificate and seal to each affidavit, aggregating $15.50."

§ 11. Affidavits used on final hearing.

Case No. 1. Stimpson v. Brooks (1856) 3 Blatchf. 456, Fed. Cas. No. 13,454.

Defendants sought to tax the cost of affidavits used in opposing a motion for preliminary injunction. Judge Betts, in refusing to tax the item, said:

"It is the costs on final hearing alone which are, by the statute, chargeable by one party against the other. Had these affidavits, in such state of the cause, been admitted in evidence, I should have no doubt that, although not, in strict legal nomenclature, depositions, they might

be regarded as within the intention of congress, and

be taxable under the denomination of 'depositions.'

營

*

I consider the item as not taxable, because the proofs were not admitted on a final hearing of the cause, without considering it of moment whether they can be appropriately termed 'depositions.''

Case No. 2. Indianapolis Water Co. v. American Straw-Board Co. (1895; Ind.) 65 Fed. 534.

A special examiner was appointed to take testimony for use on the hearing of a motion for preliminary injunction, but the motion was withdrawn, and it was agreed that the testimony so taken should be "treated as taken after issue joined," and read at the final hearing, and it was so treated and used. Judge Baker held that the evidence should be treated as "depositions," saying (page 536):

"In the case under consideration, where it must be and is conceded that the testimony of the witnesses was taken and reduced to writing under and by competent authority, and their written testimony has fully performed the office and function of depositions on the final hearing of the cause, it is useless, in determining the compensation of the officer before whom it was taken, and of the attorneys for their services in connection therewith, to inquire whether it had every technical requirement of legal depositions that was necessary to secure their admission as evidence. The waiver supplied any defect. The taxation of attorney's fees on each of the depositions herein is therefore approved."

(35)

CHAPTER IV.

DEPOSITIONS.

§ 12. Who may Take, and Fees for Taking.

(a) Equity Rules.

(b) Statutes.

13. Clerk's Fees for Taking.

(a) Statutes.

(b) Decisions.

14. United States Commissioner's Fees for Taking. (a) Statutes.

(b) Decisions.

15. Examiner's Fees for Taking.

16. Commissioners under Dedimus-Fees of.

17. Notaries and Other Officers--Fees of.

18. Stenographers-Fees of.

19. Disbursements by Officers.

20. Copies of Depositions.

(a) When Taxable.

(b) When not Taxable.

21. Depositions-When not Used-Fees for.

#

*

12. Who may take, and fees for taking-(a) Equity rules. Rule 67. "After the cause is at issue, commissions to take testimony may be taken out in vacation, as well as in term, jointly by both parties, or severally by either party. In all cases, the commissioner or commissioners may be named by the court or by a judge thereof, and the presiding judge of the court exercising jurisdiction may, either in term time or in vacation, vest in the clerk of the court general power to name commissioners to take testimony. Either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally, and thereupon