Dowling v. Bush

Johnson, Justice. The defendant’s affidavit was anundantly sufficient, uncontradicted, to authorize the allowance of all the fees for travel and attendance. But when the plaintiff showed that the foreign witnesses were not in attendance, but had left for their residences in a foreign state before the trial was brought on, the clerk should have called for explanation and further proof before allowing their fees. The ordinary affidavit should haVe been no longer followed as sufficient (Dean vs. Williams, 6 Hill, [412] 376). Where the departure of the witnesses before the trial was shown, or enough shown to call for an explanation from the de- " fendant, he should have been required to show where they were subpoenaed and why they were permitted to depart. It is difficult to see how a party can swear that a witness was material arid necessary on the trial of a cause, whom he has permitted to depart before the trial is moved. The fact of the departure ought to be taken as conclusive that the witness was not ■regarded as material, notwithstanding the common "affidavit, unless the party claiming his fees can show in explanation that it was in consequence of some admission or concession on the other ,gide, which rendered his evidence unnecessary, or some other fact to prove the necessity or supposed necessity of his attendance at all. I apprehend that a party who subpcenaes a witness to attend the trial of a cause, and permits him to depart before the trial is brought on, so that he can not avail himself of his evidence upon the trial in case it becomes necessary, is no more entitled to have the fees for his attendance and travel taxed, than he would be had the witness come to the court after the trial was over. In the latter case it has been expressly held that the party is not entitled to the fees (Booth vs. Smith, 5 Wend. 107). If the witness departs without leave, his fees may be recovered back; the witness is not entitled to retain them, and consequently the party subpoenaing him can not recover them of his adversary (Ehle vs. Bingham, 4 Hill, 595; Anon, 3 Hill, 457). So where it was shown that one of the witnesses was attending court as a party in a suit of his own, the plaintiff should have been required to show affirmatively where he was subpoenaed. A foreign witness, subpoenaed at the place of trial, is not entitled to travel fees, and the party can not have them taxed (Bank of Niagara vs. Austin, 6 Wend. 548). It is no answer to say that these facts were sworn to on information and belief merely. Had they been unfounded they might have been readily controverted by the plaintiff. They were affirmative matters and should have been enquired into by the taxing officer. Aside from the charges for the two foreign witnesses, the [413] allowance was proper upon the papers before the clerk. A general negative of the facts stated in the ordinary affidavit, upon information and belief merely, is not, in my opinion sufficient to put the moving party to further proof. And the more especially in this case, where the plaintiff was non suited. Retaxation ordered.