Fuller v. Hunter

R. W. WALKER, J. By section 2378 of the Code it is provided, that, “ in all actions where a set-off is pleaded and controverted, the defendant recovers his costs sustained in establishing the set-off, though judgment be rendered for the plaintiff for a residue.” When a defendant proves his set-off by a witness whose reputation for veracity is attacked, and witnesses are summoned by the plaintiff to discredit, and others are summoned by the defendant to sustain the impeached witness, the costs of all these witnesses, without regard to their number, (Code, § 2392,) are to be considered as having been incurred in establishing the set-off; and the defendant is entitled to a judgment for such costs against the plaintiff. The fees of the clerk for issuing, and of the sheriff for executing the subpcenas for these witnesses, constitute, as a matter of course, a part of the costs which the defendant is entitled to recover. The action of the court below was in conflict with this view; and the judgment on the motion to re-tax the costs must be reversed, and the cause remanded.