
    PORTER vs. WILLIAMS.
    1. The action of the Circuit Court on matters relating to the taxation of .costs may he revised on error, except in certain eases of appeal in which the Circuit Court is invested with discretionary power under the act of 1824.
    2. "When a party, whether ignorantly or oppressively, summons witnesses in a cause which is not at issue, or is not for trial at the term to which the subpoena is returnable, he will be taxed with the costs of their attendance; and the advice of counsel cannot protect him.
    3. "When a party summons witnesses to sustain his character, after he has been notified by the counsel for the opposite party that no attempt will be made to impeach it, and such witnesses are not examined on the trial, the party by whom they were summoned will be taxed with the costs of their attendance, although he acted under the advice of counsel.
    Error to tbe Circuit Court of Talladega.
    Tried before tbe Hon. Ezekiel Pickens.
    
      This case originated before a justice of the peace, and was brought to the Circuit Court by writ of certiorari. From the bill of exceptions it appears, that Williams sued Porter before the justice, for a sum which is not stated; that the justice gave judgment for the latter, when Williams, during term time of the Circuit Court in April, 1851, applied for and obtained a writ of certiorari from the judge of said court, returnable to the November term of that year, when a trial was had, which resulted in favor of the plaintiff. On this trial, but one witness was examined in behalf of Williams. It further appears, that he had caused seventeen witnesses to be summoned in his behalf, at the April term, 1851, and nineteen at the November term, 1851, all of whom proved their attendance, and claimed their fees. It also appears, that after the trial in the Circuit Court, Porter moved the court to tax the plaintiff (Williams) with the costs of such witnesses as had been summoned by him, but were not sworn on the trial.
    On this motion it was shown, that the writ of certiorari was returnable to the Fall term, 1851, of the court, and that Porter had no notice that it had been applied for and obtained, until after the April term for that year. Williams, being sworn, stated, that he understood, but not from Porter, that his character was to be attacked, and that he summoned these witnesses to sustain it; that it was not with a view of merely increasing cost, and that he had them summoned under the advice of counsel.
    Porter then proved, that notice had been given the plaintiff’s counsel, before the sitting of said court, and before the appeal was taken, but after the cause had been decided by the justice against Williams, that no effort would be made to impeach his testimony.
    Upon this evidence, Porter moved the court as above stated; but his motion was overruled, and he excepted.
    The refusal of the court to tax the costs according to the motion of the plaintiff in error, is the only error assigned.
    L. E. PARSONS, for plaintiff in error.
   LIGrON, J.'

Since the cases of Smith v. Donelson, 3 S. & P. 393, and Randolph v. Perry, 2 Por. 376, no doubt seems to have been entertained of tbe power of tbis court to revise on error tbe action of tbe Circuit Courts, on matters relating to taxation of costs. Tbe only exception to tbis rule is found in cabes arising under tbe act of 1824, regulating tbe taxation of costs in certain cases of appeal from justices of tbe peace, in wbicb tbe Circuit Courts are vested with discretionary power to impose tbe costs on either party; and in sucb cases, tbe exercise of that discretion cannot be reviewed. Beason v. Riddle, 11 Ala. 743.

Tbis case does not come witbin tbe exception; and consequently, tbe decision *of tbe court below on tbe motion of tbe plaintiff in error is a proper subject of revision in tbis court.

In Brily v. Hodges, 3 Por. 335, it was beld, that tbe costs of witnesses who are summoned, but not sworn, may be taxed against tbs' unsuccessful party, if it appears by affidavit, or otherwise, that they were summoned to prove material facts, and not for oppression. But, we apprehend, it was never intended to make tbe affidavit of tbe party summoning sucb unexamined witnesses conclusive of tbe purpose for wbicb they were summoned. It is clearly competent for tbe opposite party to controvert it, and show, if be can, that it is untrue. Tbis may well be done by establishing tbe existence of a state of facts wbicb will show that it was wholly unnecessary to have summoned sucb witnesses at all, inasmuch as tbe party who brings them into court bad been notified, that tbe point to wbicb their testimony was intended to be directed would not be made in tbe case. From tbe bill of exceptions, sucb appears to have been one aspect of this case in the court below.

It is also shown, that at a term of that court before tbe case was placed on tbe docket, and before it could lawfully have been placed there, the plaintiff (Williams) caused seventeen witnesses to be summoned, who attended at that term. Tbis was wholly irregular, and tbe cost arising upon tbe attendance of these witnesses should never have been taxed against tbe defendant. There was no case then pending and at issue, in wbicb they could possibly have been examined; and it is an abuse of tbe process of subpoena, to sue it out in a case which is not at issue, or wbicb is not for trial at tbe term to which suck subpoena is returnable. And the party wbo thus ignorantly or oppressively uses it in such cases, must pay the cost of it; and the advice of counsel cannot protect him.

The proof on the motion also shows, that Williams’ attorneys had been distinctly notified, that no attempt would be made to impeach his veracity, should a trial take place in the Circuit Court; and this, before he had taken the steps necessary to carry the case into that court. In his own affidavit on this motion, he does not say that he had heard from Porter himself, or from any person who had heard the latter say anything upon the subject, that an attempt would be made on the trial in the Circuit Court to impeach his veracity; on the contrary, he swears that he never did understand from Porter that such attempt would be made.

While it is admitted, that, when a matter collateral to the issue involved becomes important, as where the credit of a witness is impeached, the party for whom he testifies will be allowed to sustain his credit, by producing an equal or greater number of witnesses than are brought to impeach him; yet, before these witnesses are summoned, the party must know, or have good reason to believe, from the words or acts of his adversary, or his counsel, that the credit of his witness will be assailed; otherwise, he should be charged with all cost of the witnesses who are summoned by him, and who are neither needed, sworn nor examined. Yague rumors will not justify the summoning of nineteen witnesses, when the result shows that but one is needed. Neither can such oppression be justified, by saying that it was done under the advice of counsel. We all know how easily, and commonly, counsel are misled by the artful and uncandid, not to say false, statements made to them by their clients, who, desiring particular advice, shape their communications in such a manner as to be certain to obtain it.

We do not think the defendant in error was justified, under the facts shown on the motion, in summoning any witnesses to the April term, 1851, of the Circuit Court, and consequently the cost of all witnesses summoned by him to that term must be taxed against him. And, as he summoned nineteen witnesses to the trial term of the court, and only examined one, and from the showing made, had no reason to apprehend tbat be would have any necessity to use tbe others, he must pay the costs of eighteen of them.

The judgment of the court below must be reversed, and the clerk of that court must re-tax the cost of the case, according to the rules laid down in this opinion.  