Opinion
Spring Sessions, 1838.
INDEB. assumpsit. Narr. Pleas. Issues. Trial and verdict for plaintiff.
Ridgely, for defendants, moved that the court disallow to the plaintiff the costs of six witnesses, summoned by him and not sworn. Cullen objected.
Costs are to be taxed by the court. But it is not true that the defendant is bound to pay the costs of all the witnesses the other party may choose to summon. Neither will it do to establish the general rule, that no witnesses fees shall be allowed who are not sworn. In general they will be taxed, as they arc in most cases in fact material. But when the allowance of the costs of witnesses who are not sworn is objected to, the court will require the party summoning them to show their materiality, or a reasonable ground to suppose they would be material, under the issues: in the cause.
The plaintiff made affidavit that these witnesses were not summoned to increase costs, but in truth, because the counsel under the pleadings in the case deemed them to be material, and that they would have been material but for the failure of the defence on points raised by the pleadings.
The Court said they would not disallow these costs. Prima facie, if a witness be not sworn he will be considered not material; but the affidavit of the party producing the witness that he was material, and not summoned with a view to increase costs, and this affidavit uncontradicted, will remove the prima facie impression.
Motion disallowed.Cullen and Frame, for plaintiff.
Brinckloe and Ridgely, for defendants.