Lyon ex dem. Eden v. Wilkes

1 Cow. 591

Opinion

Curia.

The mere circumstance, that the items for wit?" nesses’ fees were objected to before the taxing officer, is not a sufficient ground óf moving for a re-taxation. There is nor affidavit here, nor was there any before the taxing officer, that the witnesses did not attend, as charged in the bill. In the absence of evidence to the contrary, we will intend, that he had due proof of their attendance.

The charge for the attendance of a surveyor, at $1,25 per day, is inadmissible, except where a view is had in the cause» In all other cases, he stands upon the footing of an ordinary witness, and this item must be reduced accordingly.

(a)

These causes were all noticed and carried down for trial. The omission to place any one of them upon the calendar, is no cause against taxing the costs of carrying it down. The defendants might have moved to enter a ne recipiatur, but they did not do it, and the plaintiff had a right to hazard this. The fees charged for putting the causes on the calendar must, however, be stricken out.

Rule accordingly.

2 R. L. 29.