
    
      The G. & C. Railroad Comp. vs. William Choice.
    
    Where a witness residing out of the district has been examined by commission, and he afterwards attends under subpcena and is examined on the stand, only the costs of the subpoena and of his attendance can be taxed — not the costs of the commission also.
    
      Before Whitner, J., at Greenville, Fall Term, 1852.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was a motion to correct the taxation of costs in a number of cases wherein the Greenville and Columbia Railroad Company were plaintiffs, and sundry persons separate defendants.
    “ The sheriff had been served with a rule to show cause why he should not be attached for contempt, in not paying over the costs in these cases to the various parties entitled to receive the same. He made his return, setting forth the amounts of costs in his hands, which he professed himself ready to pay, under the direction of the Court, but stated that he had been notified not to pay out the same, as a motion would be made at this term to correct the taxation. It appeared that in most of the cases costs had been taxed in favor of the plaintiff’s attorney, clerk, sheriff, commissioners, and clerk in commission, on commissions for the examination of James L. Gantt, residing in Charleston, S. C., as a witness for plaintiffs, at Spring Term, 1852; and that after these commissions were issued, subpoenas were issued, and Mr. Gantt attended as a witness at the same term, and that costs for his attendance and the subpoenas were likewise taxed. It likewise appeared that costs were taxed in favor of Mr. Gantt for his per diem attendance, as well as mileage from Charleston, in all the cases.
    “The defendant’s attorney moved to correct the taxation of costs, so as to allow costs only upon the commissions for Mr. Gantt’s testimony, or for his personal attendance, but not for both.
    “They also moved to correct the taxation of costs, so that Mr. Gantt’s mileage should be charged in but one of the cases, instead of all.
    “The commissions were, regularly issued, and the affidavits of the President of the Company, as well as Mr. Gantt, showed that they were sued out in good faith, and that Mr. Gantt’s testimony was material and important; and that at the time the commissions were executed, his personal attendance as a witness was very doubtful and uncertain.
    “I ruled that the plaintiffs were entitled to tax the costs for Mr. Gantt’s mileage in all the cases; but that the taxation must be so corrected that the plaintiffs should have their costs either for the commissions to take Mr. Gantt’s testimony at Spring Term, 1852, or for his personal attendance at the said term, as they might elect, but not for both.
    “The cases were, each of them, against separate defendants, amongst whom there was no unity of interest, though all were for instalments on stock of the said Company. They were combined in the rule, and in this report, to prevent multiplicity of proceedings. With regard to the rights involved, each of the defendants stand separate and alone.”
    The plaintiffs appealed from that portion of the order which required of them an election to tax, either for the commissions or for Mr. Gantt’s attendance, and claimed the right to tax for both these items.
    
      Elf or d, for the motion,
    cited Kirkley vs. Nolly, 1 Hill, 389; 11 Stat. 75.
    
      Sullivan, contra.
   The opinion of the Court was delivered by

Glover, J.

The 17th section of the Act of 1839 (11 Stat. 75) authorized and required the clerk to grant a commission to take the deposition of Mr. Gantt, a witness residing without the district where the trial was had.

Availing themselves of this provision, litigants are enabled to secure a speedy trial, and prevent those frequent delays which were caused by the absence of witnesses. Where the personal attendance of a witness is preferred, a writ ad testificandum would be issued; but a party may also apply for a commission to be used, if necessary, and if the witness be present in obedience to the writ, his examination would supersede the depositions taken by commission. The presence of a witness is seldom indispensable, and it was not contemplated that the parties to a suit would, in all cases, avail themselves of both means to obtain evidence. Such a practice might lead to the unnecessary accumulation of costs, and, consequently, to abuse. If the presence of the witness be necessary, and yet the party desires to guard against delay, he may issue a commission in addition to the writ ad testificandum; and in this case the Court is satisfied that the personal attendance of Mr. Gantt was required, in good faith ; but as his examination in chief was dispensed with by his presence under the writ to testify, the costs of the commission cannot be taxed. '

It is, therefore, ordered that the clerk do re-tax the costs in the several cases stated in the report; that he allow Mr. Gantt’s costs as a witness under the writ ad testificandum, in each case, together with the costs of attorney, clerk and sheriff, on said writ, and that the costs on the commission be disallowed.

As the order made by the presiding Judge will attain the same result which is here contemplated, the motion is dismissed.

Wardlaw, Frost, Withers and Whitner, JJ., concurred.

Motion dismissed.  