#### W. F. HENDERSON v. D. W. WILLIAMS, et als.

Practice — Costs—Nonsuit—Witnesses 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 non-suit, the costs of such witnesses are properly taxable against the plaintiff.

This was a motion made by the plaintiff before Clerk of the Superior Court of Wilkes county, to re-tax bills of cost theretofore made out and taxed against the plaintiff, and from the judgment of the Clerk the plaintiff appealed to his Honor L. L. Green, Judge, at Chambers. The summons issued in the original cause July 9, 1895, returnable to Fall Term, 1895. The complaint, alleging injury to plaintiff’s land, was filed July 15, 1895. The answer denying the allegations of plaintiff’s complaint was filed at Fall Term, 1895. At Spring Term, 1896, of Wilkes Superior Court, the plaintiff asked for a continuance for the want of the testimony of one-Brown, which continuance his Honor, Judge Norwood, granted upon the plaintiff paying the cost of the term.

At Fall Term, 1896, of Wilkes Superior Court the case was called, and the plaintiff in open court took a non-suit.

*340On Monday, January 18, 1897, the plaintiff,through his attorney, L. S. Benbow, came hefore the Clerk and made a motion to re-tax the cost in the case upon the grounds that no witness should be allowed to prove his attendance, except those who were sworn, examined or tendered against the party cast. No witness was sworn.

After hearing and considering the motion, i,he Clerk adjudged that, as the case was disposed of at term time, he had no jurisdiction to order cost re-taxed.

From this ruling the plaintiff appealed to Green, Judge, at Chambers, who held that the Clerk erred in bolding he had no jurisdiction to order the cost re-taxed. And the cause was remanded to the Clerk, who was commanded to re-tax all the cost, from commencement of the action entire, and in so doing to allow no witnesses subpoenaed by the defendants to be taxed against the plaintiff, except those who were sworn, examined or tendered.

From this judgment the defendant appealed.

Messrs. Glenn & Manly and W. W. Barber, for defend, ants (appellants).

No counsel, contra.

Faieoloth, C. J.:

The summons was returnable to Fall Term, 1895. At Fall Term, 1896, the plaintiff took a non-suit and judgment was entered against him for costs. The defendant 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 *341present. He bad no opportunity to swear, examine or tender bis witnesses by reason of tbe non-suit. It is where a trial is bad and tbe witnesses are not sworn or tendered that tbeii costs cannot be taxed against tbe party cast. Loftis v. Raxter, 66 N. C., 340. When such costs are allowed, see Code, Sections 528 and 532.

Error.