Appeal from Victoria. The appellants sought to enjoin the collection of certain costs, taxed by the clerk in the bill of costs, as the compensation of witnesses under the provision of the 63d section of the act of 1S46. (Hart-Dig., art. 721.) The costs were taxed after the adjournment of the court, but before the issue of execution. The ground of objection to the taxation of the costs was, that the witnesses did not claim their fees for attendance, and make-tlie affidavit required by the statute, until after the term of the court at which* the case was tried.

I. By the common law, costs were not allowed against the unsuccessful party ; if recovered, it was in the shape of damages. (1 Bacon.) They were-first allowed by the statute of Gloucester, (Bac. Ab., title Costs;) and, until other statutes were made prescribing the mode of taxing costs, were taxed by one of the judges in term time, and entered up in the postea. (See same-authority.) Costs in England are now taxed by prothonotaries, or other officers, whose powers are defined by statute.

II. If the court do not confine the authority of the clerk to the power given ’by statute, the will of the cleric is the only law. I-Ie may tax, in his hill of ■costs, compensation for witnesses without testimony and at any time; one •execution may issue for one amount, and another subsequently for another— new costs having been taxed and allowed since the first execution. Compensation may be allowed for witnesses who are gone, dead, who never have been paid by plaintiff, and which never can be collected by reason of some bar, as, in this ease, the statute of limitations.

The only question in this case is one of practice under the law of 1846, section 63. (Hart. Dig'., art. 721.)

This law imposes no restriction on the clerk, as I understand it, as to the time when the required affidavit shall be made, whether in term time or in vacation, before or afler final judgment. As lie is authorized to administer •oaths at any time on subjects connected with the duties of his office, no substantial reason can be assigned why the affidavit and certificate should not be made and given at any time before execution issues, where the witness ap>-plies for the same. Indeed there arc reasons why this should be done in vacation rattier than in term time, for the cleric is then mow at leisure, and if final judgment has been rendered, one affidavit and certificate are sufficient, .and would save costs.

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