Headnote
In general, witnesses must attend at the time for which they are subpoenaed, on peril of losing their fees if any detriment be suffered by the party in consequence of their absence; and where they are not entitled to fees, none can be taxed for them against the opposite party.Where, however, the defendant, on the first day of the circuit obtained a postponement till the next circuit on payment of costs, and the plaintiff’s witnesses, who lived at a, great distance, started in time to arrive on the opening of the court pursuant to the subpoena, but were accidentally detained without any fault on their part so that they did not arrive till the morning of the second day, which was before the cause was reached on the calendar: Held, that the witnesses’ fees were taxable as part of the plaintiff’s costs of the circuit.
If a defendant apply for a postponement at the opening of the court upon the first day of the circuit, and before the arrival of the plaintiff’s witnesses, the judge may suspend making the order so as to give a reasonable time for the witnesses to arrive, unless the defendant will stipulate to pay their fees in case they attend. Semble.
Witnesses5 fees. The plaintiff’s witnesses, who lived at the distance of one hundred miles and upwards from the place of trial, were subpoenaed for the first day of the circuit, and started in season to arrive there at the opening of the court on the first day ; but, in consequence of an accident by the way, the witnesses did not arrive until the morning of the second day. On the morning of the first day, before any cause had been tried, the defendant put the cause over the circuit on payment of costs. After the witnesses arrived, which was before the cause had been reached on the calendar, the plaintiff taxed his costs, and was allowed for the fees of the witnesses.
D. Burwell, for the defendant,
now moved for a re-taxation, and cited Booth v. Smith, ( 5 Wend. 107 ,) where it was held that a witness was not entitled to fees who did not arrive until after the cause had been tried.0. Meads, contra.
As the witnesses were only prevented by an accident from being present at the opening of the circuit, and they actually arrived before the court opened on the second day, and before the cause had been reached on the calendar, I think they were entitled to fees. It is true that the plaintiff could not have made the necessary affidavit of the attendance of witnesses when the cause was put over on the morning of the first day; but as the witnesses had been subpoenaed from a considerable distance, it was not unreasonable to wait until the next morning for their arrival. If the parties had not arranged the question of witnesses’ fees by stipulation, the judge would, I presume, have suspended his order for putting off the trial so as to give a reasonable time for the arrival of the witnesses. I agree that witnesses must attend at the time for which they are subpoenaed, at the peril of losing their fees if any detriment'comes upon the party in consequence of their absence; and where they are not entitled to fees, they cannot be taxed against the opposite party. But where, as in this case, there is no fault on the part of the witnesses, and the party who subpoenaed them has sustained no damage in consequence of their absence, fees may be allowed and taxed against the opposite party.
Motion denied.