Dean v. Williams — 6 Hill & Den. 376

Majority

p. 376

Dean vs. Williams.

Headnote

Charges for witnesses cannot be taxed on an affidavit stating merely that they were subpoenaed and attended. The affidavit must add, that they were material and necessary, or that the party believed them to be so.

If the party resisting the taxation show that a large number of the witnesses were not sworn, and the other party do not explain this, the charges should be disallowed.

Motion by the defendant for a re-taxation of costs. The plaintiff, who had the verdict, produced before the taxing officer an affidavit of the subpoenaing and attendance of a great number of witnesses. The defendant produced affidavits, tending strongly to show bad faith on the part of the plaintiff in subpoenaing and procuring the attendance of many- of the witnesses—that it was done to swell the costs, when some of the witnesses knew nothing about the matter, and others were wholly unnecessary. The taxing officer thought he was bound.

p. 377

by the usual affidavit that the witnesses were subpoenaed and attended, and allowed all the charges for witnesses’ fees.

S. H. Hammond, for the defendant.

A. Taber, for the plaintiff.

The bill must be re-taxed. When the officer saw that there had probably been an attempt to charge the defendant with the fees of witnesses who were not necessary, he should have followed the common affidavit no longer. The charges should have been struck out, unless the plaintiff produced further proof. I say this on the assumption that the affidavit was sufficient in the first instance. But it was not. It is not enough to swear that the witnesses were subpoenaed and attended. It should be added, that they were material and necessary; or that the party verily believed they were material and necessary witnesses. (See 2 R. S. 653, § 7.) And where, as in this case, a great number of witnesses attended who were not sworn on the trial, the party should explain and show how it happened that so many of his witnesses proved not to be necessary. The fees of witnesses are now a very heavy charge upon the unsuccessful party, and there is room for great abuse if taxing officers do not require a very full affidavit.

Motion granted.