
    Hurd v. Fogg and Trustee.
    A defendant required by order of Court to answer interrogatories relative to a negotiable note disclosed by a trustee is entitled to fees as a witness.
    If sucb fees are not paid, be is entitled to judgment and execution for them, as costs.
    A judgment for costs for a defendant may be set off against the judgment recovered by the plaintiff.
    Motion eor costs. The principal defendant was defaulted. The trustee disclosed, that he owed a negotiable promissory note, made payable to the defendant. The defendant was thereupon summoned into court under the statute, and made answer, that he indorsed and transferred the note to a third person, before the service of the writ, in good faith, in part payment for a debt due to said third person.
    The defendant then moved for costs.
    
      Parsons, for the plaintiff.
    
      Christie, for the defendant.
   Bell, J.

-By the default, the case is ended, as to the principal defendant. When he is summoned to appear and answer interrogatories relative to notes disclosed by the trustee, it is a new proceeding, tending to a different result from the original suit. The order of Court, requiring his attendance, is of the nature of a subpoena or summons to a witness, and it is therefore reasonable, that he should be allowed the fees for his travel and attendance as a witness. The Court would not, pro-ably, exercise their powers, either to compel the appearance of the defendant by process of contempt, or to compel him to testify after appearance, unless it appeared that his fees as6 a witness had been paid or tendered. Where the fees have not been paid, the defendant is entitled to a judgment for such fees, as costs of the proceeding. It makes no difference, in this respect, if the defendant has appeared voluntarily, without service of an order of Court.

Such judgment may, by order of Court, be set off against the judgment in the principal case, and the Court, on motion of either party, will hold the same under their control until this can be done.

The fees of the defendant, if any fund is found in the hands of the trustee from the note in question, will be taxed as costs of the action against the debtor, and allowed out of the fund. But if the trustee is not charged for such note, the costs must be borne by the creditor, as expenses of pursuing a groundless claim.

Motion granted.  