The court ruled that if the witnesses were not sworn, and examined or tendered, even though attending under subpoena, and though they would have given material evidence, their fees could not be taxed against the losing party.
Plaintiff excepted and appealed.
Where a witness, though duly subpoenaed, is neither examined nor tendered to the opposite party on the trial, his attendance can be taxed only against the party who summoned him. Loftis v. Baxter, 66 N.C. 340;Wooley v. Robinson, 52 N.C. 30. Besides, not more than two witnesses summoned by the successful party to prove a single fact can be taxed against the party cast. The Code, sec. 1370; State v. Massey, 104 N.C. 877. The motion to retax can be made before the clerk who has made the taxation, whence an appeal lies to the judge at chambers; or it can be made in the first instance before the judge at term time by virtue of his supervisory power over the action of the clerk. In re Smith, 105 N.C. 167.
AFFIRMED.
Cited: Sitton v. Lumber Co., 135 N.C. 541; Moore v. Guano Co.,136 N.C. 250; Brown v. R. R., 140 N.C. 156; Herring v. R. R.,144 N.C. 209, 210; Hobbs v. R. R., 151 N.C. 136; Chadwick v.Ins. Co., 158 N.C. 381; Staley v. Staley, 174 N.C. 642.