
    Furman & Smith v. John Peay.
    
      A plaintiff, who sues in the general jurisdiction of the Court, is infilled to full costs, although the sum recovered is within the summary jurisdiction; unless it appear, that he offered no proof, at the trial, of a cause of action beyond the summary jurisdiction, or that the suit had been instituted wantonly, upon a fictitious demand, with a view to increase the costs: and neither of these will be presumed against him, in the absence of a report from the Judge, before whom the cause was tried.
    A party is infilled to tax the costs of commissions, issued for examining witnesses, whose testimony was material, although their depositions were not read at the trial, in consequence of their having been rendered unnecessary by evidence introduced, in anticipation, by the opposite party. ■
    Before Mr. Justice Bichardson, at Chester, Fall Term, 1831.
    This was a motion to reform the clerk’s taxation of costs. The plaintiffs brought their action for the recovery of a balance of $143, 16, alleged to bo due to them by the defendant, upon business tranctions between them to a large amount; but obtained a verdict for no more than $43,12. The clerk having taxed full costs for the plaintiffs, the defendant, at the present term, moved to reform the taxation. The presiding Judge granted an order to the clerk to re-tax, allowing the plaintiffs summary process costs, only, and taxing costs for the defendant, for the excess of the costs incurred by him, over the amount of costs to which he would have been put in defending a suit by summary process.
    The plaintiffs now moved to rescind the order, on the grounds: 1. That the suit was bona fide for the whole amount claimed, -and failed in part, only from technical obiections to the evidence; , , , , , . . ¶ •• j? "n and that under these circumstances they were intitled to lull Costs. 2. That the Court, at all events, possessed no authority to tax costs for the defendant after verdict against him.
    The defendant also moved to modify the order, so as to disallow a charge made by the plaintiffs for two commissions, which were not used at the trial, and which, if offered to be read, would have been objectionable on the ground, that the depositions were incompetent.
    Williams, for the* plaintiffs,
    cited Nance v. Palmer, ante, 88.
    
    Clarke, contra,
    
    cited Hall v. Williams, 2 Ray, 433, Taylor v. M’Mahan, ante, 131, and Rice & Craven v. Palmer, ante, 117.
   Martin, J. sitting for Harper, J.

delivered the opinion of the Court.

The case of Nance v. Palmer, has, as I conceive, settled the question of costs, in cases like the present, upon rational and legal principles. I draw from that case the principle, that where one sues in the general jurisdiction, and offers no proof whatever of a sum beyond the limited jurisdiction, or where it appears, obviously, that the suit has been instituted wantonly, upon a fictitious demand, with a view to increase the costs, he shall recover only the costs allowed on summary process. There may be some difficulty in the application of the rule. It must depend, in a great'measure, on the opinion of the presiding Judge; and unsatisfactory as that may often be, even to himself, it would not be more so than in many other-cases in which he is obliged to áct. We have no report from the presiding Judge, who tried this case, of the evidence, by which to test it under the rule laid down in Nance v. Palmer. In the absence of such information, we cannot' say that the plaintiffs, preferred a fictitious demand, or'thalrthey offered no proof; and we will, therefore, presume nothing against them, which shall deprive them of costs. This renders it unnecessary, that any thing should be said on the plaintiffs’ second ground. It may not be amiss, however, to remark, that although we have no report of the facts from the presiding Judge, the circumstantial, and documentary evidence, which accompany the proceedings, not only negative the idea, that the plaintiffs’ demand was wholly fictitious, but create some doubt, whether in justice they were not intitled to the whole amount for which they brougth their action.

The appeal on the part of the defendant cannot be sustained. It is very true, that a party should not be allowed his costs for procuring incompetent testimony. But on looking into the accounts in this case, and to the commissions, it will be found, that these witnesses were examined to prove large cash payments, made by the plaintiffs for the defendant, of which the books could not afford plenary, or even competent proof. The testimony of the witnesses was therefore indispensably necessary, until, on the trial, the defendant, anticipating the plaintiffs’ evidence, produced an account current between them and himself, which gave a new direction to the testimony, and rendered the commissions unnecessary. The motion of the plaintiffs to reverse the order made on the circuit, is granted, and that of the defendant is refused.  