Whipple v. Cumberland Cotton Manuf'g Co.

29 F. Cas. 933, 3 Story 84

• Court: U.S. Circuit Court for the District of Maine
• Decided: May 15, 1844
• Status: Published

Opinion

THE COURT held:

1.On the first point, that the plaintiff was entitled to charge his actual travel from Lowell, the place of his residence, to Portland, the place of the trial, at the several terms at which he actually attended the court, it appearing to the court, that his personal attendance and presence was important and proper, even if not indispensable in the ease, under ah the circumstances.

2. That the witness, stated in the second point, was entitled to have his fees for travel and attendance taxed in the case, as it was clear, that his attendance was proper afid important, and that he actually did travel from Boston for the purpose. The courts in England have allowed travel and attendance fees, and even expenses of witnesses, who have been summoned from a foreign country, where it appeared to the court, that their testimony was important and necessary to the justice of the cause. 2 Tidd, Prac. 814 (9th Ed.) 1828. The same rule has been applied in other parts of the present circuit, where necessary witnesses have attended from other states.

3. On the third point, that the witnesses were to have their fees taxed during the time of their actual attendance after their examination was closed, it not appearing to have been unnecessary or improper; because, although the examination on both sides was closed, yet, under the circumstances of the case, it might be necessary for the court to direct the witnesses to be recalled to explain a part of their testimony, which might be obscurely given or misinterpreted.

4. Upon the fourth point, the attendance of the witnesses during the illness of counsel was properly to be taxed, since it was required by the state of the case, and it was uncertain when the cause would be resumed. If the witnesses had left the court without leave, they would have been liable for all damages, as well as to be attached, if their presence was required in the intermediate trial before their return.

5. On the last point, the expenses of the survey were to be borne equally by both parties, since it was made for their mutual benefit, and was necessary to the true understanding of the cause on both sides.