Cornell v. Potter , 15 How. Pr. 278 ( 1858 )

Balcom, Justice.

The only question to be decided on this motion is, whether the clerk should have allowed the defendants fees as witnesses, on the adjustment of their costs, in the action against the plaintiff, for attending the trial, and being examined as witnesses in their own behalf.

The fees of witnesses were prescribed by chapter 886 of the Laws of 1840, and they have since remained unaltered. Section eight of that chapter is in these words, viz: “ Fees of witnesses : For each witness fifty cents, for each day while attending any court or officer, and if the witness resides more than three miles from the place of attendance, travelling fees at the rate of four cents per mile, going and returning.” (Laws of 1840, p. 831.) When this statute was enacted, a party could not be called as a witness by his adversary, except to testify in cases in which the defence of usury was, interposed; and parties to actions could not then testify at all for themselves.

The language of section 399 of the Code, so far as it is applicable to the question now presented, is, that “ a party to an action or proceeding, may be examined as a witness in his own behalf, the same as any other witness.” But neither that section, nor any other, contains any provision that allows a party fees as a witness, for attending a trial and testifying in his own behalf. If a party can recover fees, as a witness, of his adversary, when he testifies and beats his adversary in an action, the above-mentioned section of the Code must make him a witness, when he is examined in his own behalf, within the meaning of the act of 1840.

It would be absurd for a party to take out a subpoena for himself, or have one served on himself, requiring him to appear and testify on the trial of his own action, in his own behalf. A witness within the meaning of the act of 1840, is a person whose attendance at the trial cannot be compelled, except by serving a subpoena on him, and paying him or tendering him his fees as such,

Section 899 of the Code would be as effectual and as sensible if its language was, that “ a party to an action or proceeding, may testify in his own behalf touching all matters in dispute therein.” The words, that he way be examined “ as a witness in his own behalf, the same as any other witness,” do not divest him of Ms character as a party, but only show that he may testify in person, instead of procuring witnesses to do it for Mm. He is yet a party while acting as a witness. And I think his character as a party should prevent him recovering fees as a witness against Ms adversary.

It would be useless to lay down a rule that a party can recover fees as a witness, when he attends as such, and not when he attends as a party, although examined as a witness in Ms own behalf; for parties would be informed of the rule, and attend as witnesses, or would generally swear they attended as such.

I am of the opinion that the provision is a wise one, which allows parties to actions and proceedings, to testify for themselves ; but I also think they should not'be encouraged, or even tempted, to take the place of witnesses, in cases in which there is no necessity for them to do so, by giving them fees as witnesses, when they testify for themselves, in actions wherein they succeed.

Witnesses’ fees are disbursements; and disbursements are expenses paid or incurred by a party or his attorney, in the progress of an action, for postage and printing, the fees of officers and witnesses. A party to an action cannot pay or become liable to pay fees to himself, for attending the trial thereof as a witness; and a charge by a party for fees as a witness, for attending the trial of an action and testifying in his own behalf, cannot be properly denominated a disbursement.

The conclusion to which I have come is, that the clerk did right in rejecting the charges of the defendants for fees as witnesses for themselves in the action. This conclusion is sustained by the following authorities: Christy agt. Christy, (6 Paige Ch. R. 170;) Perry agt. Livingston, (6 How. Pr. R. 404;) Logan agt. Thomas, (11 id. 160;) and I think the case of Querissle agt. Hilliard, (3 Abbott, 31,) so far as it conflicts with the above conclusion, should not be followed.

The defendants’ motion for a re-adjustment of their costs, must be denied, with $10 costs,