MEADOWS V. ROGERS. VOL. 17 fidavit, alleging that most of them were summoned to accumulate costs, vex and harrass him, &c., praying the court to allow the plaintiff the costs of but one or two witnesses to each fact, &c. The plaintiff filed a [*362 sponse, verified by his affidavit * , stating what he had each witness subpoenaed to prove, &c. It was admitted, upon the hearing of the motion, that the plaintiff ordered subpoenas at the time for six witnesses, for whom three subpoenas were issued. That the clerk was not directed to issue one or three subpoenas, 361*] ■ eMEADOWS but that he put the names of the six in three subpoenas, for the reason that V. the blanks in the printed subpoenas ROGERS. were not large enough to insert more It is within the power of the circuit court, in the than two names in each. That the exercise of a sound discretion, to disallow to the subpoenas for the four other witnesses plaintiff any costs which he has caused unreasonably were ordered separately at different and unnecessarily to be accumulated, and the judg-times. ment of the court below, in the exercise of such discretion, should not be overruled by this court, ex-The court ordered the clerk to tax in cept in cases of manifest error and abu v e of power. favor of the plaintiff the costs of one It is the duty of the clerk of the circuit court, to subpoena with circular mileage and embrace in one subpcena all the witnesses directed service, for summoning five of the wit-byene party to be summoned. But this rule is not absolutely mandatory—as where the party, after nesses, subpcnaed and sworn on the ordering a subpoena for witnesses, ascertains that it part of the plaintiff, and their claim is necessary for him to have others summoned. for attendance, aud to disallow all costs Appeal from the Clark Circuit Court. for other subpoenas sued ,out by the plaintiff, &c. ON. THOMAS HUBBARD, Cir- H cuit Judge. The plaintiff excepted, took a bill of exceptions, setting out the testimony Flanagin, for the appellant. given by each witness upon the trial, Cummins, for the appellee. the facts proven on the hearing of the motion, &c., and appealed to this court. ENGLISH, C. J. Meadows brought The defendant examined but one wit-an action of trespass against Rogers in ness. the Clark circuit court ; arid, upon a 1. Under our statute, the plaintiff in trial of the cause, obtained verdict and an action of trespass, or other action, judgment for $15 damages, and for recovering judgment is entitled to costs, costs. The grounds of the action were, unless the damages recovered fall be-that a flock of the plaintiff's hogs in— low the jurisdiction of the court, &o vaded the defendant's corn field, and Digest, chap. 40, sec. 12, 20. he chased them with his dogs and But this means the reasonable, proper killed one of them. and necessary costs incurred in the The plaintiff subpoenaed ten wit-prosecution of the cause. It was not nesses, nine of whom were present and the intention of the act, that the de-examined. The defendant filed an af-fendant should be taxed with unneces
JAN. TERM, 1856. sary and vexatious costs. Id. section aught that appears in the bill of ex-30. It is, beyond doubt, within the ceptions for ordering the subpoenas at power of the court, in the exercise of a different times. sound discretion, to disallow to the We would not hold that this statute plaintiff any costs, which he has caused is absolutely mandatory, and to be fol-unreasonably and unnecessarily to be lowed under all circumstances. accumulated, and the judgment of the It might often happen, that a party, court below, in the exercise of such dis- after ordering a subpoena for witnesses,. cretion, should not be overruled by might ascertain that it was necessary this court, except in cases of manifest for him to have others summoned error and abuse of the power. whose materiality was not known to The judge, who presided in the him before. In such case, the court trial of this cause, heard all the would hardly refuse to allow him the witnesses examined, saw the man- costs of the additional subpoenas. ner and extent of the examina- We find in the transcript before us, 3631 *Um] of each, understood what no evidence of such error or abuse of they severally proved, and was fully discretion on the part of the court be-advised of the character of the whole low, as to warrant us in reversing its case, was more competent to give direction in reference to the taxing of proper directions about the taxin g of the costs in this case. Affirmed. the costs than we ean possibly be. Mr. Justice Scott, absent. 2. The lst section, chapter 171, Di-Cited :-17-387. gest, directs that a "subpoena shall contain the names of all witnesses for whom a subpoena is required by the same party in the same cause, who reside in one county." The fact that the blanks in the clerk's printed forms were not large enough to contain more than two names, was no valid excuse for the failure to insert the names of all six of the witnesses applied for at the same time by plaintiff, in one subpoena, as directed by law. It was the duty of the clerk to write the process or procure printed forms with larger blanks. If the clerk, and not the plaintiff, was at fault in this instance, it is a matter between them, but the defendant is not to be taxed with unnecessary costs on account of their failure to follow the law, without any sufficient excuse. Nor was the showing. that plaintiff ordered the subpoenas for the four remaining witnesses at different times, sufficient excuse for issuing a separate subpoena for each. There may have been no necessity or good reason, for
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.