O'Brien v. Dunlap

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