
    De Benneville against De Benneville.
    Saturday, September 10th.
    Witnesses subpcenaed though not examined though not subpcenaed, are entitled to payment. A party may call as many witnesses as he thinks necessary to make out his case; the court will not interfere unless he is guilty of oppression.
    IN this cause, which was an action of trespass for mesne pro. fits, a verdict was found for the plaintiff for 200 dolls, and the prothonotary taxed the costs of witnesses at 162 dolls. From this bill the defendant appealed.
    Rawle for the defendant
    alleged that eight of the witnesses subpomaed by the plaintiff had been neither examined nor called by him, and that two others were called and examined solely by the defendant; and he prayed the opinion of the court whether in a cause in which a plaintiff knows he must recover something, and defendant has nothing to oppose to his demand, he may oppress his antagonist by summoning and charging the expense of witnesses whom he never calls to the book.
    Dickerson for the plaintiff
    stated that several of the witnesses were brought to prove the annual value of the estate and some other points which were unexpectedly conceded at the trial; but that there was no wilful oppression.
   Smith J.

I examined this question a long time since, and this was the result; a witness subpoenaed though not examined has a right to payment; so if examined though not subpoenaed. A party has a right to call as many witnesses as he thinks are necessary to make out his case. Where there is oppression it must be proved, and the court will lay their hands upon it; but it is not to be presumed.

Shippen C. J.

There must be proof of oppression, which does not seem to be the case here.

Per Curiam.

The bill of costs, as it has been taxed by the prothonotary, is confirmed.  