
    FULLER vs. HUNTER.
    [MOTION FOR TAXATION OF COSTS.]
    1. Costs on successful plea of set-off. — Where a set-off is pleaded and controverted, and tlie witness by whom it is established is sought to be impeached, the defendant is entitled to recover (Code, § 2378) the costs of all the witnesses, without regard to their number, who were summoned for the purpose of impeaching or sustaining said witness, and examined on the trial.
    Appeal from the Circuit Court of Greene.
    Tried before the Hon. PokteR King.
    This action was brought by John Hunter against Bartholomew Fuller, and was founded on the defendant’s promissory note for $516. The only defense interposed by tbe defendant was the plea of set-off, and on the issue joined on that plea the plaintiff recovered a verdict and judgment for twenty-seven cents. The set-off was proved on the trial by the testimony of one T. E. Fuller, a witness summoned for that purpose by the defendant. Seven witnesses were summoned by the plaintiff to impeach said Fuller, and eleven by the defendant to sustain him ; and all these witnesses were examined on the trial. After the trial, the defendant moved the court to tax the plaintiff with the costs of all thése witnesses, which, including the fees of the clerk for issuing the subpoenas, of the sheriff for executing them, and of the attendance of the witnesses, amounted to $132 25. The court taxed the plaintiff with the costs of the witness Fuller, but refused to tax him with the other costs; to which latter ruling the defendant excepted, and which he now assigns as error.
    S. F. Hale, for the appellant.
    R. F. Inge, contra.
    
   R. W. WALKER, J.

By section 2378 of the Code it is provided, that, “ in all actions where a set-off is pleaded and controverted, the defendant recovers his costs sustained in establishing the set-off, though judgment be rendered for the plaintiff for a residue.”

When a defendant proves his set-off by a witness whose reputation for veracity is attacked, and witnesses are summoned by the plaintiff to discredit, and others are summoned by the defendant to sustain the impeached witness, the costs of all these witnesses, without regard to their number, (Code, § 2392,) are to be considered as having been incurred in establishing the set-off; and the defendant is entitled to a judgment for such costs against the plaintiff. The fees of the clerk for issuing, and of the sheriff for executing the subpcenas for these witnesses, constitute, as a matter of course, a part of the costs which the defendant is entitled to recover.

The action of the court below was in conflict with this view; and the judgment on the motion to re-tax the costs must be reversed, and the cause remanded.  