Carpenter v. Taylor, 4 N.C. 265, 1 Taylor 265 (1818)

Jan. 1818 · Supreme Court of North Carolina

4 N.C. 265, 1 Taylor 265

CARPENTER against TAYLOR.

If the Plain* tiff summon material witnesses, and notrhnre than the number allowed by law, and they are absent when the trial comes on, butthe Plaintiff nevertheless recover, he is not liable to pay for their atten-but the d?ien*

The Plaintiffs had a verdict in their favour. The Defendant obtained a rule on them to shew cause why jffiey should not pay the attendance of two of their witnesses who were absent at the trial of the cause. Upon the return of the sci. fa. one of the Plaintiffs, who acted as agent for the others in the suit, made oath that those two witnesses were under subpoena and were material wit-messes for the Plaintiffs. One of them was to prove the length of time which the Plaintiffs had been in possession of the land, the other was to prove the boundary. One had removed from the State before the trial of said suit, and the other was absent for some cause not known to the Plaintiffs, but were both expected at Court, and that they had attended for several Courts before the trial of this cause.-—The question for the opinion of the Supreme Court is, who shall pay the cost of these witnesses ?

Daniel, J,

delivered the opinion of the Court:

The law allows a party to summon two witnesses to prove a fact, and directs that the party cast shall pay the costs.—The Plaintiff, in his affidavit, states, that the two witnesses who have taken out their tickets were material, one to prove possession, the other to prove the boundary. We do not consider the Plaintiff liable to pay these witnesses, because he was able to go to trial without them, as they were not absent by his consent.—Let the Defendant, Taylor% pay the witness tickets and cost of this rule.