A plaintiff who fails in his action is liable to the costs of all the defendant's witnesses, though they were not examined, if it appear that they were called, sworn, and put in the care of the sheriff.
HALL, J.
When it appears to the court that a party has summoned a witness, not at all material in the suit, justice requires that he should himself pay the costs so incurred, and that his adversary should not be charged with them. But the person aggrieved should make his objections as soon as he can after having made the discovery; one strong reason for which is that the judge who tried the cause is much better qualified to judge of the materiality of a witness than any succeeding judge.
Whether the witnesses in the present case were material or not, it is unnecessary, however, to inquire, because they, amongst others, were at the plaintiff's own motion called, sworn, and delivered over to the sheriff, which we all think was sufficient notice that they were summoned; and if they were not examined, he ought then to have ascertained the fact of their immateriality, and not have postponed it to a time when the inquiry is much more difficult to be made.
(129) Let the present motion be dismissed.
NOTE. — See Carpenter v. Taylor, post, 689.
Cited: Harris v. Lee, 46 N.C. 228; Loftin v. Baxter, 66 N.C. 342; Hobbs v. R. R., 151 N.C. 136.