
    M. B. Bogan vs. William White, alias Wm. Faucett.
    In strictness, there is no. such thing as an appeal from the taxation of costs by the clerk; he is merely the ministerial officer of the Court, and it will correct his errors brought to notice at any time before the costs have been paid.
    Where there were two cases between the same parties, and the witnesses attended on subpoenas not having the exact title of either case, in taxing the costs of such witnesses it must be left to them to say upon oath, in which of the cases they were respectively subpoenaed, and attended.
    Costs cannot be taxed for the attendance of witnesses in a case, before it was placed upon the inquiry docket.
    The plaintiff in this case (which was an action of trover) had suffered a nonsuit; and on the taxation of the defendant’s costs before the clerk, he made the following objections to the taxation:
    1st. That there was a case of William Eaucett, alias White, standing above this case on the docket, and was tried before it — that the subpoenas offered to be taxed, are of the style and title of that case, are applicable to it, and cannot be taxed in this, even regarding the cases as being between the same parties, the witnesses having but one set of subpoenas.
    2d. Because there was no legal proof of the materiality of the witnesses, or that they were summoned in good faith.
    3d. Because some of the witnesses were subpoenaed before the cause was at issue, and before the plaintiff gave his bond as required by the Act of 1827.
    These objections were overruled by the clerk, who made the following report:
    “In this case the subpoenas presented for taxation all purport to be in the case of William Eaucett, and William Eau-cett, alias White, and not in the case of William White alias Eaucett, which is the name of the case for taxation. Sundry witnesses were not sworn; many have returned their subpoenas for attendance when the case was not at issue, and only on the inquiry docket — there being two cases of the same character, and differing only in the name of the defendant, was the-cause, perhaps, of the subpoenas not being in the title of the case they should have been. But the parties bringing themselves within the rule of the Court, I have proceeded to tax the same, believing that I had no right to try the validity of the subpoenas returned by the party claiming to tax the costs. Some of the witnesses were sworn, and material; others were not sworn, but the parties swearing that they were subpoenaed in good faith, believing them to be material, I have proceeded to tax all. March 22d, 1837.”
    The plaintiff appealed from the decision of the clerk, to the Circuit Court. Notice of appeal was given immediately after the result of the clerk’s decision was made known to the plaintiff or his counsel, although after March Term, 1837, during which term the clerk’s decision bears date. His Honor, the presiding Judge, made the following decision:
    “The taxation by the clerk was made upon the 22d day of • March, which was the third day of the term, and the proper time for an appeal. I do not consider it was necessary to give notice to the party liable to pay the costs; he had notice of the proceedings before the clerk, and was bound to take notice of the result at his peril. After the term, it was too late to file objections, or to appeal. The motion is dismissed. Fall Term, 1837. B. J. EARLE.”
    The plaintiff moved to reverse this decision, because
    1st. His Honor erred in deciding that notice of the taxation was not necessary, and the plaintiff was bound to take notice of the result at his peril.
    2d. That the costs not having been paid, the Circuit Court, on motion, without an appeal, should have looked into the taxation and corrected the errors of the clerk, without reference to the time which had elapsed since the taxation.
    Herndon, plaintiff’s attorney.
    
      Thompson and Dawkins, contra.
   O’Neall, J.,

delivered the opinion of the Court.

The decision below is placed upon the ground, that the plaintiff did not appeal from the clerk’s taxation of costs in proper time, inasmuch as a term intervened. It is necessary to consider first this ground. I am satisfied that, in strictness, there is no such a thing as an appeal from the clerk’s taxation of costs. He is merely a ministerial officer, exercising no judicial power. It is true be decides; but it is not as a judge, it is as the mere agent of the Court. He ascertains the fact of the cost incurred, and makes out a bill, which is for the examination of the parties. If they are satisfied with it, there is an end of the matter; but if either is dissatisfied with it, he has the right to ask the Court to review and correct it. When is this to be done ? I know of only a single limitation in this behalf. It is that the Court cannot interfere after the costs have been paid, or the execution returned satisfied. In these instances there is nothing remaining to be done, and the parties are out of Court. But in all other cases the power of revising the clerk’s taxation, is one which should be exercised by the Court.

This conclusion makes it necessary that we should express some general views upon the objections to the taxation: 1st. Generally to entitle a party to tax the attendance of a witness, it is necessary to show that he attended by subpoena in that case. A case is known by its title; and if, therefore, there be two cases, and they are in their title distinguished from each other, then the attendance ought to be taxed in that case of which the subpoena pursues the title. 2d. These cases were in point of fact between the same parties; but they were tried at different times, and it may well be that the witnesses attended in the case first on the docket until it was disposed of. If they had been subpoenaed in two cases between the same parties, and there had been a mistake in entitling all the subpoenas of one case, then the witnesses would have been entitled to have one set of their subpoenas taxed in the case the title of which had been mistaken. But until this appears, or until the case first on the docket was tried, it cannot be that subpoenas of its title should be taxed in this case. If the witnesses, after the trial of the first case, attended under subpoenas of its title in the other case, then they ought to be taxed. Eor in that case their attendance is between the same parties in fact, and it is manifest that it could be in no other case than in the one for trial. When the witnesses attend on subpoenas not having the exact title of either case, but between the same parties, then it must be left to the oath of each of the witnesses to say in which of the cases he or she was subpoenaed and did attend, and according to the fact- so to be ascertained must the taxation be. 3d and 4th. It is unnecessary to consider tbe third and fourth objections at length. The clerk has said that some of the witnesses were sworn and their materiality thus established.; and where not sworn, that the parties complied with the rules laid down in Taylor vs. McMahon, 2 Bail. This is a sufficient answer to the third objection. "We are not properly informed whether any of the witnesses attended under subpoena before the case went on the inquiry docket. If this be so, then under the fourth objection, I think such attendance could not be taxed.

The motion to reverse the decision below, is granted, and the clerk is directed to retax the costs according to the rules stated in this opinion.  