Byrd v. . Rouse

4 N.C. 53

• Court: Supreme Court of North Carolina
• Decided: January 5, 1814
• Status: Published

Opinion

The act of Assembly made on this subject declares that neither plaintiff nor defendant shall recover costs for more than two witnesses, where more than two shall be summoned to prove any fact. In the case before us the plaintiff proved on the trial, as he had a right to do, the original speaking of the words, and the repetition of them at three other different times. Now, it is not material whether there were four different counts, on each of which damages were claimed, or whether there was one count only for the first speaking of the words, the damages on which was attempted to be increased by giving in evidence the repetition of them at other times; because proof of the defendant's having repeated them is just as necessary in the one case as in the other. It therefore follows that the plaintiff is entitled to recover the costs of eight witnesses — the two who proved the original speaking of the words and two for each repetition of them afterwards. With respect to the number necessary for the plaintiff to introduce to meet the defense set up by the defendant, the Court cannot judge, not knowing what was proved by the defendant's witnesses. It seems that the judge who presided allowed him to recover the costs of two witnesses; in doing so we cannot say he erred. It may have been the case that it was only necessary for the plaintiff to prove one fact in answering the plea of justification; but if in answering that, or any other plea, it would have been necessary to establish several facts, he ought to be permitted to recover the costs of two witnesses for each fact, in case he introduced them to prove it, and more, if in the opinion of the court they were deemed necessary.

Affirmed.

(55)