O'Brien vs. Dunlap

O’Brien vs. Dunlap. Where several issues are made up and tried in the same cause, some of which are found against the “ party prevailing,” he is still entitled to his full costs upon ail the issues, by the provisions of Steel. 1821, ch. 59, sec. 17. ÍN this case, which was trespass quare clausum fregit, the defendant pleaded several pleas, resulting in issues to the country, all of which were found against him, except one; .and judgment being rendered tn his favor for costs, he taxed, among other items, thp fees of the witnesses summoned to support the issues found against Mm. The clerk allowed the costs as taxed; from which decision the plaintiff appealed to the court. [MAJORITY — Thu Chief Justice,] Thu Chief Justice, before whom the cause was tried, after hearing the question argued by Longfellow and Mitchell for the plaintiff, and On and Greenleaf for the defendant, certified his opinion as follows. As to the general principle relied on by way of objection to the annexed bill by the plaintiff's counsel, viz. that no costs ought to bo taxed by the defendant for witnesses who were summoned to establish those issues which were found for the plaint iff; though according to the practice in the English courts it would be good, as I conceive, yet no such discrimination has ever been made by our courts; and it is excluded by the provisions of our statute.- The “ prevailing party” is entitled to his costs, generally; not merely on the issues found for him. 1 have consulted my brethren, and they agree with me. It is true, the court will sometimes disallow costs when witnesses attend unnecessarily as to time, and are summoned in extravagant numbers; but in this case fraudulent or oppressive intentions are not to be presumed, as the whole defence was arranged under the direction of distinguished counsel; and the issues to be proved required ancient and numerous witnesses, jt feel bound, therefore, to affirm the decision of the clerk