983 does not provide that any affidavit shall be attached to the memorandum of costs. Section 984 does provide for an affidavit, as to the fees of certain officers, that the services charged therein have been actually performed,' but the fees of witnesses are not mentioned. In the absence of any rule of court upon the subject, it was at an early day, in some of the districts, held that an affidavit ought to be made to the memorandum of costs to the effect that the witnesses' fees had been paid. In course of time, regular rules were adopted in the various circuits, declaring what the substance of the affidavit to the memorandum should be, and was doubtless adopted in order to secure uniformity in the several districts. Rule 17 of this court provides what the affidavit shall contain. The affidavit in the present case complies with this rule. * ** The action of the clerk in refusing to allow the fees of witnesses because the affidavit did not in direct terms state that they have been paid' is set aside, and he is directed to allow the witnesses' fees. In all other respects the taxation as made by him is approved." Case No. 6. Colusa Parrot Min. & Smelting Co. v. Anaconda Copper-Min. Co. (1900; Mont.) 104 Fed. 514 (at law). Judge Knowles said: "The filing and service of a proper itemized bill of costs, wherein each charge is so distinctly specified that it can be readily understood, and which is verified by the affidavit of the party or the attorney, prima facie establishes the validity thereof. Where the statute of the state prescribes the mode in which a party should proceed to have his costs taxed, that mode should be followed. * As the statute law of the state does not regulate the proceedings for taxing costs before a clerk of a court in which the cause was tried, I conceive that it is a matter which can be regulated by the rules of court. It is therefore held that the clerk may proceed to determine the question of the taxation of the costs in this case, and he may admit evidence as to whether any item charged was a proper and necessary expense, in accordance with the views above expressed." Case No. 7. Primrose v. Fenno (1902; Mass.) 113 Fed. 375. Judge Putnam said: "The objection to the allowance of the witness fees is based on only two propositions, one that the certificate in this case, which is in the usual form, should have been supported by an affidavit, and the other that the certificate does not show that the witnesses have been paid their fees. So far as the first objection is concerned, it has been settled in Massachusetts, longer than the memory of man runneth to the contrary, that a certificate in this form is prima facie sufficient. Cook v. Holmes, 1 Mass. 295; Howe, Pr. 332. The certificate never shows that the witness has been paid." (438) CHAPTER XXXV. APPEAL FROM AWARD OF COSTS. § 78. Circuit Court Decisions. § 79. Circuit Court of Appeals Decisions. $80. Supreme Court Decisions. § 78. Circuit court decisions. Case No. 1. The Caithneshire (1848; S. D. N. Y.) 1 Abb. Adm. 163, Fed. Cas. No. 2,294 (in admiralty). Judge Betts said: "There is no authority in the court to adjudge costs de novo on an appeal from taxation. Such order should be one made in the cause on the hearing, and composing in part the terms of the final decree. The appeal from the taxation overruled." Case No. 2. Dedekam v. Vose (1853; S. D. N. Y.) 3 Blatchf. 153, Fed. Cas. No. 3,731 (in admiralty). Judge Betts, after disposing of the item of docket fees, said: "The objections to the five dollars taxed to the clerk are not specified, and it is impossible for the court to determine what items of charges compose it. The orders, returns, or decrees entered and copied, and the one dollar docket fee allowable to the clerk, may amount to that sum, and, as the party appealing from the taxation has not demanded a specification of the items from the clerk, this charge must now be considered as acquiesced in. The same remark applies to the charge of fifty cents 'paid for affidavits."" 79. Circuit court of appeals decisions. Case No. 1. Clarke v. Richmond & W. P. Terminal Ry. & Warehouse Co. (1894; 5th Cir.) 10 C. C. A. 387, 62 Fed. 328. The court said: "No appeal lies from a mere decree for costs." In re City Nat. Bank (April 30, 1894) 153 U. S. 246, 14 Sup. Ct. 804, citing City Nat. Bank v. Hunter, 152 U. S. 512, 14 Sup. Ct. 675. If the matter of costs, submitted on this appeal, is not such a mere decree for costs as will not support an appeal, it is such a matter as lies so largely in the discretion of the chancellor that the court of appeals would not review it, except in a case of grave and manifest abuse." Case No. 2. The Robert Graham Dun (1895; 1st Cir.) 17 C. C. A. 90, 70 Fed. 270. The court said: "It appears by the record that, in the costs allowed to the claimants, the sum of $37.70 was taxed as travel for witnesses out of the district in excess of one hundred miles, and to this error was assigned; but this seems to have been merely the taxation by the clerk. Nothing in the record shows that this was brought to the attention of the judge by appeal, or in any other manner, or that the court ever passed upon the question whether such travel was properly taxable as costs. As the question was not submitted to or considered by the court, this assignment of error has no foundation to rest upon." Case No. 3. The State of Missouri (1896; 7th Cir.) 22 C. C. A. 239, 76 Fed. 376. The court said: "It is objected that the clerk im properly taxed an item of $27.29 for receiving, keeping, and paying out the amount awarded the claimants, when that amount had not been paid to the clerk, and that the same is not properly taxable until the clerk has at least received the amount. This objection may be well taken, but it was not specified in the motion to retax costs, nor in the assignment of errors, and cannot therefore be considered." Case No. 4. Gamewell Fire-Alarm Tel. Co. v. Municipal Signal Co. (1896; 1st Cir.) 23 C. C. A. 250, 77 Fed. 490. The court said: "On the hearing, on bill, answer, and proofs, the court adjudged that claim 1 of the patent was valid, and had been infringed, and thereupon it entered the usual interlocutory order for an account and an injunction. Before further proceedings in the suit, the patent expired, and the complainants waived an accounting, and took a decree for the nominal damages of one dollar. The court allowed them costs, against the objection of the appellants, who were the respondents below. The appellees now move to dismiss the appeal, on the ground that, as the suit is in equity, the allowance of costs was a discretionary matter, from which no appeal lies; but the appellants contend that the decree was in violation of sections 973 and 4922 of the Revised Statutes, and is therefore one over which this court has jurisdiction, even if costs were the only substantial matter involved, and that it must be reviewed by us. The appeal is dismissed, with costs in this court for the appellees, incident to their motion to dismiss." * 營 |