Roth v. Meads

Rosekrans, Justice. There must be a retaxation of the costs herein. The clerk should have allowed to the plaintiffs the traveling fees of the witnesses named, from their respective residences to Plattsburgh, and back, and one day’s attendance for each. The disbursement was necessarily made, and the witnesses were not in fault for their non-attendance in obedience to the subpoena. They had in good faith commenced complying with its command, and continued to obey it until they were stopped midway in their journey to court, by notice that the court would not be held. Under such circumstances no part of the money paid to them could be recovered back by the plaintiffs. The contract between the plaintiffs and the witnesses was entire and could not be apportioned. The part performance of it by the witnesses under the circumstances was a fulfillment of the whole substance of the contract. Their omission to travel on after they were informed that the court would not be held, worked no injury to any one, and must be regarded as a failure to perform an unimportant and nonessential part of the contract. In Ford agt. Monroe, (6 How. Pr. R., 206,) it was held that a settlement of a suit by the parties or a postponement of it worked a discharge of the witnesses’ liability to attend court, but did not impair his right to retain the money paid to him, and that it could only be recovered back when the witness was' in fault for non-attendance. The motion for retaxation must, for these reasons, be granted.