Jackson, ex dem. Finch v. Hoagland — 1 Wend. 69

Majority

p. 69

Jackson, ex dem. Finch and others, vs. Hoagland and others.

Headnote

Taxation of costs. A sub-* peona cannot be taxed, unless actually issued. A witness residing in the place where the court is held, not entitled to travel fees. But one affidavit can be charged, when a number of causes are entitled in the same paper.

Motion for relaxation of costs. There were five suits noticed for trial at the Steuben circuit, all depending upon the same title and same defence. One was tried, and a verdict found for the defendant; when the plaintiff gave notice that he would not try the other causes at that circuit. The defendants’ costs of the circuit, in the four causes remaining untried, were taxed by a commissioner, and a motion is now made for relaxation.

By the Court,

The commissioner allowed for subpoenas, tickets, and service of same on witnesses in each cause, when, in fact, no such services were rendered. There was a subpoena in the cause tried, which had been served on the witnesses. This was sufficient to entitle the defendants, in each cause, to charge for their attendance, as it was shewn the same witnesses were required in each cause, but would not justify an allowance for services not rendered. A deduction of those charges must therefore be made. 2. There was an allowance to a surveyor for travel

p. 70

fees, who resided in the village where the court was held, and of course could not be entitled to such fees. It was also objected that the allowance to the other witnesses, for travel fees, were overcharged, as their places of residence were less than 20 miles from the court-house, and yet they were allowed a day’s travel. This objection is too fastidious, and is not allowed. The commissioner also erred in taxing an affidavit of attendance of witnesses in each cause, when, in fact, there was but one offidavit. A deduction must be made-on that account, though the officer taking the affidavit is entitled to his fee for each cause named in the titles, A retaxation is ordered at the expense of the plaintiff.