#### JERE HOBBS v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 13 October, 1909.)

Witnesses — Fees—Costs.

Witness fees may not be taxed in the cost against an unsuccessful litigant, though the witnesses. were subpcenaed, when they were not examined or tendered, or, if the witnesses did not attend the trial, having a legally sufficient excuse, it is not shown that their evidence was material. Nor can fees be taxed when it only appears that the failure of the witness to attend was inexcusable.

Appeal by defendant from Guión, J., 5 May, 1909, from Oitslow.

The facts are sufficiently stated in the opinion.

*135No counsel for plaintiff.

Davis & Davis and Frank Thompson for defendant.

Walker, J.

This is a motion by tbe defendant in tbe .above-entitled cause to retax costs. Tbe clerk of tbe court, before 'whom tbe motion was made, found and stated tbe facts, from wbicb it appears tbat tbe case was tried at April Term, 1909, and tbat D. L. Hobbs and S. T. Brittan, wbo were subpoenaed as witnesses by tbe plaintiff, bad attended as sucb at a term of tbe court prior to tbe April Term, 1909, but «were not present at tbe trial term, S. T. Brittan having died since tbe last preceding term; tbat D. Y. Justice bad attended, under subpoena, as a witness for tbe plaintiff at several terms, including tbe trial term, and was sworn, but not examined nor tendered to tbe defendant when tbe case was tried. J. W. Spicer, a witness for tbe defendant, was duly subpoenaed to attend at tbe trial term, but failed to do so, or, rather, left tbe courthouse before tbe trial of tbe case and without giving tbe defendant an opportunity to examine him. Tbe clerk ruled tbat tbe fees of certain other witnesses, wbo bad not been sworn and examined or tendered to tbe defendant, should not be taxed against tbe defendant, but held tbat D. V. Justice was not entitled to prove bis attendance at tbe trial term and to have bis fees for tbat term taxed against tbe defendant, but was entitled to have bis fees for attendance at prior terms so taxed. Lie also held tbat tbe fees of tbe witnesses, Hobbs and Brittan, should be taxed in tbe bill of costs against tbe defendant. Judgment was entered accordingly. In bis judgment be does not distinctly rule as to tbe fees of tbe defendant’s witness, J. W". Spicer, but merely states tbat be bad not “proved bis attendance at tbe trial term.” Tbe defendant excepted to tbe clerk’s rulings and judgment, and appealed to tbe Superior Court, and his judgment was affirmed. It thereafter excepted and appealed to this Court, assigning errors as follows:

> 1. Tbat tbe court erred in taxing tbe witness tickets of D. L. Hobbs and S. T. Brittan against the defendant.

> 2. Tbat tbe court erred in^ taxing tbe witness tickets of D. Y. Justice for tbe term of court prior to April Term, 1909, against tbe defendant.

> 3. Tbat tbe court erred in taxing tbe witness tickets of Jere W. Spicer against tbe defendant.

> 4. Tbat tbe court erred in affirming tbe judgment of tbe Clerk of tbe Superior Court of Onslow County in said cause.

Tbe general rule which is applicable to the facts under con- • sideration is, tbat wben a cause has been tried, only those witnesses of tbe successful party wbo have been sworn and either *136examined or tendered to the opposite party can be taxed against the latter. Venable v. Wheeler, 4 N. C., 128; Costin v. Baxter, 29 N. C., 111; Wooley v. Robinson, 52 N. C., 30; Loftis v. Baxter, 66 N. C., 340; Cureton v. Garrison, 111 N. C., 271; Moore v. Guano Co., 136 N. C., 248; Herring v. Railroad, 144 N. C., 208. The reason for the rule is, that if the witness is examined, the nature of his testimony will appear and the court can then judge as to its materiality, or, if he is tendered, the party to whom the tender is made has the opportunity, not only of using him as a witness, but bf ascertaining whether or not his testimony is relevant to the controversy, and consequently whether he should be made to pay for his attendance if he should be cast in the suit. There is still another branch of the rule which has not been stated, and it is this: “When a material witness is not present at the trial, but has theretofore been in attendance, and when the question is made in apt time, a party is only entitled to have such witness’ fees taxed against his adversary upon satisfactory proof of the materiality of his evidence, and that his absence was on account of sickness or other sufficient cause; for if the witness failed to attend without sufficient excuse he is not entbled to have his attendance taxed against either party, but is liable to a penalty of forty dollars and to such damages as the party may have sustained by reason of his willful default.” Boyden, J., in Loftis v. Baxter, supra. See, also, Venable v. Martin, supra.

In this case the plaintiff was the prevailing party and entitled to recover costs of the losing party, the defendant, which are allowed by the statute, as construed .by this Court.

It appears that the two witnesses, Hobbs and Brittan, had attended, under subpoena, as witnesses for the plaintiff, but not at the trial, and that Justice attended at April Term and also at previous terms, but it does not appear that they were “examined or tendered,” or that their testimony was material. It is true Brittan died before the case was tried, but that can make no difference, for the plaintiff could still have proven the materiality of his testimony. Indeed, that fact was peculiarly within the knowledge of the plaintiff. The names of those “witnesses should have been stricken from the bill of costs. The plaintiff must pay them, if they see fit to compel him to do so.

As to the witness J. W. Spicer, if he absented himself and thereby failed to obey the subpoena issued for him, he is not enthled to any fees. The exceptions of the defendant should have been sustained by the court and the bill of costs reformed accordingly, and in failing to do so there was error.

Reversed.