Ela v. Knox

| N.H. | Jun 15, 1865

Sargent, J.

In this case it appears in evidence that the amounts charged for copies of the deeds were actually paid and were reasonable charges, and that these copies were procured to be used in evidence on trial, and were copies of deeds in the defendant’s chain of title, which he must use to show title in himself to the premises in controversy. We think this charge should be allowed the same as a charge for taking a deposition to be used in the case. Had they been copies of deeds not in the defendant’s chain of title and not to be used in evidence on the trial, however necessary they might have been to the defendant in preparing his case, they would not be allowed.

The bill for the survey and plan is as follows :

To paid surveyor for two days’ surveying land in Allenstown, $5.00

To paid surveyor for making plan, 2.00

To paid two assistants, two days each, 4.00

$11.00

And it appears in evidence that the sums charged were actually paid, and were reasonable charges, and that said survey and plan were necessary in order to the proper understanding and trial of the defendant’s case; that said survey and plan were made in good faith by defendant, and by direction of his counsel with the expectation that the cause would be tried by the jury ; that the surveyor would be an important witness for the defence, and that the plan would be of great importance to the defendant; that the surveyor had been examined by defendant’s counsel aiid full minutes of his testimony taken ; that he was expeeted to attend as a witness on trial, and had agreed to attend when requested, and bring and use the plan which he had made; and that his assistants were also relied on by defendant as important witnesses, who knew the location of the premises in controversy, and went to point them out particularly to the surveyor, and that they had also agreed to attend as witnesses at the trial. But, none of the witnesses were ever summoned, or attended court, as witnesses, but plaintiff, after seeing the defendant’s plan and learning what his proof would be, became nonsuit.

We think this charge must be disallowed. Each party must prepare his case, look up his witnesses and examine them, and if tho controversy is in relation to real estate, surveys and plans often become necessary on both sides. But for the work of preparing his case and making his surveys and plans, he may be obliged to pay his attorney and his surveyor, but cannot charge these items in his bill of costs, against tho other side, in case of nonsuit or default, or a trial by jury. All that can be charged for the surveyor, is for the time he is in attendance as a witness.

This charge of eleven dollars is disallowed, the balance of eleven is allowed.