
    ANTONIO RODRIGUEZ Y GARCIA, Plaintiff, v. NORTH GERMAN FIRE INSURANCE COMPANY, Defendant.
    Opinión as to Claims op Witnesses.
    1. A witness duly subpoenaed is not entitled to a per diem while traveling to and from the court, but only to mileage.
    2. Where a witness is subpoenaed and not introduced, the presumption is he has been brought to court unnecessarily. His claims should not be taxed as costs against the adverse party.
    February 6, 1903.
    
      Mr. T. D. Mott, Jr., attorney for plaintiff.
    
      Messrs. Dexter & Hord, attorneys for defendant.
   Holt, Judge,

delivered the following opinion:

This is a motion to retax costs. Three witnesses, to wit, Antonio Rodriguez Garcia, Rafael Rodriguez, and Antonio de Hombre, have filed their affidavits supporting their claims. They were summoned by the defendant, and ask to claim against it. Their claims have been allowed by the clerk, but as to each of them there was a per diem included while they were traveling to and from court. This was improper. They are not entitled to it. The statute allows a witness during the time of travel only mileage. They are entitled, however, to claim against the defendant their per diem for three days each, and mileage for 162 miles each, at the rates fixed by law.

The next item is in the case of six witnesses, to wit, JR. A. Capó, A. Morales Lebron, J. Hernandez, José Gonzalez, Pedro J. Parra, and Juan Principe, who were summoned by the plaintiff, and their claims were allowed; but in this was included a per diem for each of them while traveling to and from the court. This was improper, and as to each of them this much of their claim is disallowed. They were only entitled to mileage while traveling.

Where a witness is subpoenaed, and not introduced, the presumption is that his evidence is not material, and that he has been brought to court unnecessarily. He would be entitled to claim as against the party bringing him, but it should not be taxed as against the adverse party. Save as indicated herein, the costs as taxed are allowed, and the bill of costs will be coi’-rected accordingly.  