Dean v. Williams , 6 Hill & Den. 376 ( 1844 )

By the Court, Bronson, J.

The bill must be re-taxed. When the officer saw that there had probably been an attempt to charge the defendant with the fees of witnesses who were not necessary, he should have followed the common affidavit no longer. The charges should have been struck out, unless the plaintiff produced further proof. I say this on the assumption that the affidavit was sufficient in the first instance. But it was not. It is not enough to swear that the witnesses were subpoenaed and attended. It should be added, that they were material and necessary; or that the party verily believed they were material and necessary witnesses. (See 2 R. S. 653, § 7.) And where, as in this case, a great number of witnesses attended who were not sworn on the trial, the party should explain and show how it happened that so many of his witnesses proved not to be necessary. The fees of witnesses are now a very heavy charge upon the unsuccessful party, and there is room for great abuse if taxing officers do not require a very full affidavit.

Motion granted.