LOGAN v. BROOKS

LOGAN a. BROOKS. Supreme Court, Fourth District; Special Term, January, 1859. Costs.—W itness-Fees. A party examined in his own behalf is entitled, on prevailing in the action, to tax witness-fees for his attendance, upon proof of the materiality and necessity of his attendance? as a witness. t Question of costs submitted upon stipulation. Upon the adjustment of costs in this action, the clerk allowed the defendants (under plaintiffs’ objection) the sum of $35.90 for the fees and attendance of the defendant Kimmel, as a witness in behalf of the defendants. One of the plaintiffs was examined on the trial. The parties had mutually stipulated that plaintiffs and defendants might be examined on their own behalf respectively. The defendant Kimmel made affidavit that he would not have attended but for this stipulation, and did so to answer the plaintiffs’ testimony, but he did not bring his' attorney from New York with him, but employed counsel at the Montgomery circuit to try his cause, and was not subpoenaed. The question whether the defendant was entitled to such fees for attendance as a witness in his own behalf, was now submitted to the court by consent. A. Sacia, for the plaintiff. James L. Phelps, Jr., for the defendant. [MAJORITY — Rosekrans, J.] Rosekrans, J. The defendant was a witness for himself. The statute allows a party who is successful in the suit the fees of his witnesses. The letter of the statute justifies the allowance, and I can see nothing on its part to exclude it. This construction may lead to abuses, as did the early practice under the statute before parties could be sworn in their own behalf. This was corrected by requiring an affidavit of the materiality and necessity of witness, and under that rule, when the affidavit was made, and it was apparent that a greater number were subpoenaed than was necessary, for the purpose of enhancing the costs, the court and its taxing officers disallowed the charges for such witnesses. The reasoning of Lord Campbell in Howes a. Barber (10 Eng. L. & Eq. R., 467), and the rule he established, seem to me to be correct. Under it, all abuse may be prevented. If a party can be sworn as to the cause of the action or defence, I think he is equally entitled to credit when he makes an affidavit as to his attendance as a witness. The defendant brought himself within the rule of Howes a. Barber, and had the defendants in Logan a. Thomas (11 How. Pr. R., 160) presented to the taxing officer the affidavits read on the appeal from the taxation, I think Hr. Justice Brown would have adopted the same rule. t The question is one which should be definitely settled by general rule of the court, or at general term; and for that purpose I shall hold that the adjustment by the clerk is correct. There is a clear distinction between the cases arising under the Code, and that in 6 Paige R., 170. I have have not access to 3 Abbotts’ Pr. R. The motion for readjustment is denied.