Practice — Costs — Nonsuit — Witness Not Sworn.
Where a defendant's witnesses are present when the case is called for trial but are not sworn or tendered because plaintiff takes a nonsuit, the costs of such witnesses are properly taxable against the plaintiff.
FAIRCLOTH, C. J.
The summons was returnable to Fall Term, 1895. At Fall Term, 1896, the plaintiff took a nonsuit, and judgment was entered against him for costs. The defendants had witnesses in attendance and their tickets were taxed against the plaintiff, who, at next term, moved to re-tax the costs and to exclude the defendant's witnesses' cost on the ground that they were not sworn, examined or tendered against the plaintiff. His Honor allowed the motion and directed the clerk accordingly.
This was error. The case was brought for trial at Fall Term, 1896, and the defendant properly had his witnesses present. He had no (341) opportunity to swear, examine or tender his witnesses by reason of the nonsuit. It is where a trial is had and the witnesses are not sworn or tendered that their costs cannot be taxed against the party cast. Loftis v. Baxter, 66 N.C. 340. When such costs are allowed, see Code, secs. 528 and 532.
Error.
Cited: Sitton v. Lumber Co., 135 N.C. 541; Brown v. R. R., 140 N.C. 154; Herring v. R. R., 144 N.C. 210; Chadwick v. Ins. Co., 158 N.C. 382.