Hale v. Merrill

The opinion of the court was delivered by Bennett, J. We think there was no error in the taxation of costs. In actions of tort against two or more, it has always been the practical construction of the statute to allow separate term fees and travel; and this upon the ground, that each defendant may be regarded as defending for himself only, and, as all torts in their [739] nature are joint and several, may, in one sense, be regarded as a party. The statute gives on the trial of each issue an attorney fee, and where all the defendants unite in a plea of not guilty, it is regarded as the trial of hut a single issue; and I apprehend it should make no difference in this respect, whether the defendants in form plead not guilty, severally or jointly. The result on trial would he the same, whichever form was adopted, and but one issue in substance in either case, would have been tried. The party who testifies as a witness, under our recent statute, should not tax fees as a witness. He still retains the character of a party, and, as such, has fees allowed him, and with them he should be content. It has never been the practice to allow a party who, in a book action, is called to testify, the fees of a witness; and the act of 1818, which gives the recovering party, in an action on book, fees for his attendance and travel before an auditor as a party, gives him no fees as a witness. Judgment of the county court is affirmed.