
    LITZ VS. KAUFFMAN.
    No appeal lies, from an order of Court, fixing the number of witnesses, who were subpoenaed, but not examined, whose fees were to be taxed as costs, against ^he losing party.
    The Court may require counsel to certify upon their honor that they considered the unexamined witnesses as material when subpoenaed, before allowing the fees as part of the costs.
    Error to Common Pleas of Northumberland County. No. 22 Jan. Term, 1885.
    The jury in this ease decided in favor of the plaintiff. A number of witnesses were subpoenaed, who attended Court, but were not called. The costs belonging- to these witnesses were ■ put in plaintiff’s bill. The defendant excepted to these costs, and demanded a retaxation. The Prothonotary decided that the witnesses were entitled to their fees. The defendant appealed to the Court, and the Court affirmed the decision of the Prothontary, provided the counsel for the plaintiff will certify to - the •¡names of the witnesses, who, in tiieir opinion, upon their honor as lawyers were material, as they understood the case; at the time they advised the plaintiff to subpoena them, as he states in his testimony.
    The opinion of the Court being as follows per
    Rockefeller, P. J.
    In the case of De Benneville vs. De Benneville, 1 Binney 46, it was ruled that “a party has a right' to call as many witnesses as he thinks are necessary to make out a case. When there is oppression it mast be proved, and the Court will lay their hands upon it, but it is not to be presumed.” In the same case it was held that a witness subpoenaed, though not examined, has a right to payment. “A design to oppress will never be presumed.” 8 Yeates 559. The result of the authorities is that there must be evidence of a design to oppress, and that is what is wanting in this case. I might state here that I have my own impression about this whole case from the beginning-to the end, but I am powerless to give relief in this matter as there is no evidence of a design to oppress. • The testimony of the plaintiff is that he had no such design, that he subpoenaed the' witnesses because he thought they were necessary, and there is no evidence to contra-diet liim. It is well known that witnesses are often thought necessary before the trial is on, and owing to some turn in the case, it becomes unnecessary to call them, but they are not for this reason to go without their fees. In the case of the Commonwealth vs. "Wood, et ah, 3d Binney 414-415, the Court allowed the costs of twenty-six witnesses, double the number sworn, provided the counsel could name so many, who in their opinion were material. In that ease there had been fifty-nine witnesses subpoenaed. I only allow this bill for want of proof of oppression, although I strongly suspect that there was. The bill of costs as it has been taxed by the Prothonotary - is confirmed, provided the counsel for the plaintiff will certify to the names of the witnesses who in their opinion, upon their honor as lawyers, were material, as they understood the case at the time they advised the plaintiff to subpoena them, as he states in his testimony.
    The plaintiff then took a writ of error, complaining of that portion of the decree which required the plaintiff’s counsel to-certify to the names of witnesses, which were material, upon their honor as lawyers.
    
      L. Dewart, S. B. Boyer and P. A. Mahon, Esqs., for plaintiff in error
    argued that the right to witnesses’ fees does not depend upon having an attorney’s certificate that they were material, and cited Be Benneville vs. De Benneville, 1 Bin. 46; Commonwealth vs. Wood, 3 Bin. 414.
    
      George and J. N. Hill, Esqs., contra,
    
    argued that the merits of the taxation are to be decided by the Court below ; Ballinger vs. Killam, 10 W. N. C. 372. In England the expense of unnecessary witnesses are not to be allowed against the losing party, and the practice obtains, of having a certificate of counsel in the cause, as to materiality; Marshall vs. Parsons, 4 Jur. 1017; Galloway vs. Keyworth, 15 C. B. 228; Fisher vs. Scott, 15 W. N. C. 126. The Supreme Court will not consider this case; the decree, being interlocutory, and not final; Gelsinger’s Appeal, ante 196; Schwilke’s Appeal, 100 Pa. 628; Miles vs. Rempublican, 4 Y. 319; Chadwick vs. Ober, 70 Penna. 264.
   The Supreme Court quashed the writ of error on the 18th of May, 1875. in the following opinion :

Per Curiam.

The materiality of witnesses in a trial before a jury depends on facts known to the Court below. Its discretion in the allowance of tees to the witnesses depeuda ou evidence which the. record does not bring up here. A writ of error reaches the record only. We can correct those errors only which the record shows. A writ of error therefore does not lie; McCauley’s Appeal, 5 Norris 187. We may, however, add that this case is right ou the merits.

Writ quashed.  