BRILEY versus HODGES, 3 Port. 335

Collier, J. This cause comes here, by writ of error from the Circuit Court of Covington. By th© record, we are inforaied, that the plaintiff obtained the order of a judge, for a supersedeas, upon a sug- . gestión set forth, in [his petition, that the defendant . had recovered against the plaintiff, twelve judgments. That the party for whose use the suits were prosecuted, caused to be summoned, in each of the cases, six witnesses, with the view of burthening the plaintiff with costs; and that neither of the witnesses were sworn and examined, nor was there any issue of fact to try.

It is further stated by the plaintiff, that he had paid the costs of two witnesses in each case, and that executions had issued against him, for the collection of the costs of the attendance of the four which were unpaid. The record does not discover whether there were any proceedings upon the order for a supersedeas, hence we infer there were none.

At the term of the Court next succeeding the rent dition of the judgment, the plaintiff moved for a re-taxation of costs in eleven of the cases, upon the grounds disclosed in his petition for supersedeas, stating his readiness to make them good, by proof.— This' motion was overruled by the presiding judge, assigning as a reason, that the Court could not, “at that time, take cognizance of the matter.” The only questions for our examination, are, was the motion of the plaintiff proper? and, was it uiade? in time?

In Considering these questions, we have felt somewhat embarrassed by the decision of this Court, in the case of Smith vs. Donaldson. A decision, from which, (with all our respect for the members of the Court, who pronounced it,) we are constrained, to some extent, to depart. We understand it to have been determined in that case, that a motion to strike' from the bill of costs an allowance to witnesses who were summoned but not sworn, and tp disallow the Costs of more than two witnesses, to any one matter of fact, should be made at the term when the cause is tried, and comes too late, if made after-wards.

The difficulty of sustaining such a motion, by proof, at any term succeeding the trial, is the only reason assigned for the conclusion of the Court. It is true, that in most cases, it would be much easier to make proof of the facts, necessary to sustain the motion, immediately afrer the'trial of the cause; yet it does not follow, that in all cases, it would be impossible to find sufficient evidence, at an after term. We cannot believe that a Court is authorised to repudiate a cause, for the reason that it may be difficult to make it out by proof. We are unadvised of any such test of the right of jurisdiction.

The correct course is, to entertain the case, hear the proof, and allow it its proper influence. It is very possible the supersedeas should not have been awarded, in as much as the objections to the taxation of costs, disclosed in the petition,^ were to be shewn by extrinsic proof, and do not appear upon the record.—Fryer vs. Austill. Yet; it was certainly competent for the plaintiff, (disregarding the supersedeas,) to have submitted his motion for,a relaxation; Such motions are familiar, in the practice of our Courts, where larger or smaller fees are taxed, than are allowed by the fee bills.

In some of the States, the amount of the costs is ascertained, and a judgment in numero rendered, for their recovery. In these, where too much costs aré taxed, and the objection appears of record, a writ of error may be prosecuted. But, where the excess of costs is to be shewn by proof, motions to retax are allowed. By our law, the clerks of the Courts are directed to tax costs — a duty which they cannot perform, until after judgment, and, most usually, defer till the close of the term.

Under such a practice, it must be difficult, if not often impossible, for an unsuccessful party to learn, during the term when judg-mentis rendered, what costs he will be required to pay. Sheriffs frequently neglect to return subpoenas within. a proper time; and clerks, as often, to make out subpoena dockets. Influenced by these considerations, we cannot but view a practice which refuses to entertain a motion, such as vve are consideringfat a term, succeeding the judgment, as calculated to effect injustice; and unau-thorised by any general rule of law, or statutory regulation.

It certainly cannot be maintained, that the unsuccessful party should not be taxed with the cost of witnesses summoned by his adversary, but not sworn. It frequently happens, that a party, under an impression, that the disclosure of certain facts, will become material, summons witnesses, which,, as the trial progresses, he is admonished that it is unnecessary to examine. In such a case, if it appears, by affidavit or otherwise, that the object of the party summoning, was not to oppress his opponant, but to prove mate-aial facts, the attendance of the witnesses should be allowed.—Hutchins v.Eden. —Carpenter v.

Taylor. Though the reason employed in this opinion, is general, and may seem to oppose all points, adjudged in Smith vs. Donaldson, yet, we desire to be understood as overruling that case, only so far as it applies to the costs of witnesses, who haye been summoned and not sworn: leaving it to be determined, hereafter, whether a 'motion to re-tax the costs of witnesses, sworn and examined, shall be heard at á term succeeding the rendition of a judgment. It rebaains but to say, that, in our opinion, the motion of the plaintiff should have been entertained; and, that the refusal to do so, is error.

The judgment is reversed, and the cause remanded. Jan’y T. 1833 1 Stew 119 3Har M'H 101. 2 Taylor R. 265