Ehle v. Bingham

By the Court, Bronson, J. Charges for witnesses cannot be taxed, without an affidavit stating the distance they respectively travelled, and the days they actually attended. (2 R. S. 653, § 7.) For the purpose of satisfying this requirement, and detecting any false swearing, the affidavit should state the name and place of residence of each witness, the distance he had to travel to reach court, and the number of days that he actually attended as a witness in the particular cause. No other rule will effectually guard against over charges. This affidavit was insufficient, and the charges for the travel and attendance of the two witnesses, amounting to $36,80, were improperly allowed. Only one day’s attendance was allowed for each of the city witnesses. That was right, both on the ground that the affidavit was defective, and because the cause was only on the day calendar for a single day. The fees paid to witnesses who did not attend were properly disallowed. (Booth v. Smith, 5 Wend. 107 ; Anon. 3 Hill, 457.) The plaintiff can recover back the moneyfrom the witnesses, and a penalty besides, unless there was some good excuse for not attending. The plaintiff’s motion for a re-taxation must be denied, and that of the defendant granted. Ordered accordingly.