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Sherman and others agt. Partridge and others.

و او را /

English statutes, (1st & 2d Will. IV, c. 58,) and hence the decisions upon that statute have with great propriety been referred to. They appear to have settled the rule, that it is only when no other question than the right of property is meant to be litigated, that an interpleader can justly be allowed. When it is alleged that the person who seeks to be discharged as a mere depository or stakeholder is liable upon any ground independent of the title, the application must be denied. Crowshay agt. Thornton, (7 Sim. 391 ;) S. C., (2 M. & C. 1;) Pearson agt. Cardon, (2 Russ. & M. 606;) Patorni agt. Campbell, (3 Doul. N. S. 397;) and Lindsay agt. Barrow, (6 C. B. Rep. 291,) differ in circumstances from the case before me, but in principle are not to be distinguished. As they appear to me to have been rightly decided, it is my duty to follow them.

Nor is it only upon the ground that has been stated that I must refuse, by substituting Delafield, to discharge the defendants. Had this action been brought by Searl himself, or by the plaintiffs merely as two assignees, I must still have said that the facts do not exhibit a case for an interpleader under a just construction of the Code. The plaintiffs seek to recover a debt arising upon contract; but Delafield is not“ a third person—not a party to the suit-making a demand for the same debt,as the words of the Code require him to be, to justify an order for his substitution. As he denies that Searl had any authority to make the sale, his demand as owner is for the logwood itself or its value, which may be greater or less than the price agreed to be paid, and at any rate is not a debt of which, as such,“ he may compel the payment.” The words of the English statute do not at all differ in meaning from those of the Code; and the court of exchequer has held that, by their necessary construction, they preclude a purchaser of goods from calling his vendor to interplead with a third person claiming to be the owner. And one of the learned judges truly observed that, independent of the statute, an interpleader in such a case had never been allowed in a court of equity. (Stanly agt. Sidney, 14 Meeson & Welsby, 800.)

The provisions of the Code, like those of the English stat

Sherman and others agt Partridge and others.

utes, were certainly not designed to introduce new cases of interpleader, but merely to enable defendants, in cases where an interpleader is proper, to relieve themselves by a summary proceeding from the delays and expense of a formal action.

The alternative motion, that Delafield may be made a co-defendant, must also be denied. This is not an action for the recovery of real or personal property within the meaning of the Code. He has no interest that can be endangered or affected by any judgment that the plaintiffs may obtain ; nor is his presence necessary to a complete determination of the controversy. As owner of the logwood, he must seek his remedies against the defendants, or those into whose hands the property may have passed.

The objection, that the defendants have offered to pay into court a less sum than is demanded by the complaint, if other objections could be removed, I should by no means regard as fatal. I should then have no difficulty in directing a reference, or an issue for ascertaining the sum which the defendants, as the price of the logwood, are bound to pay.

I remark, in conclusion, that unless the defendants have rendered themselves absolutely liable, which is strenuously denied by their counsel, I do not see that they can be prejudiced by the denial of this motion. If the sale made by Searl was fraudulent and void, the title of the true owner, according to the decision of this court in Bates agt. Stanton, (1 Duer, 79,) may be set up by them as a full defence.

I shall deny both motions without costs, and with liberty to the defendants, if they shall be so advised, to commence a regular action for compelling an interpleader.

Logan agt. Thomas & Haley.




If a party to an action can, in any case, where he is sworn and testifies as a

witness on his own behalf, recover fees as a witness, (which is doubted,) such fees cannot be taxed on the ordinary affidavit. To authorize the allowance, he should be required to show that he did not attend as a party; nor did not attend to conduct the trial of the cause; and that the sole purpose and in

tent of his attendance, was as a witness. The proper affidavits for an allowance of costs on taxation, should be presented

to the taxing officer ; because, on appeal from the taxation, no other affidavits than those used before the taxing officer can be read on the appeal.

Erie Special Term, March 29, 1855. Motion by defendants for a re-adjustment of their costs, in the nature of an appeal from an adjustment thereof, by the clerk of Erie County.

The defendants having obtained a verdict in their favor which entitled them to a judgment for costs, presented a bill of their costs to the clerk for adjustment, in which bill were the following items:

“ Three witnesses' travel fee from New-York to Buffalo, for June term, 423 miles each, $101.52. Three witnesses' travel fee from New-York to Buffalo, for January term, 423 miles each, $101.52. Three days'attendance as witnesses, June term, $1.50. The same at January term, $1.50.”

The only evidence presented to the clerk, of the defendants' right to have the witnesses' fees taxed, or allowed, was the affidavit of their attorney, stating that the disbursements charged in the bill had been, or would be, necessarily incurred in the action ; that Daniel Thomas, Jeremiah Haley and Alanson Lee were in attendance, as witnesses in the said action, at Buffalo, during the June term, 1854, and the January term, 1855, each one day; that the distance from New York, where they lived,

Logan agt. Thomas & Haley.

to Buffalo, by the “straitest ” route, is 423 miles; and that the said witnesses were material on the trial of the cause, and were sworn and used as witnesses therein.

Thomas and Haley, two of the witnesses named in the affam davit, are the defendants in the action.

The plaintiff objected before the clerk, to the allowance of any fees for the travel or attendance of the defendants as witnesses; and the clerk sustained the objection, and deducted from the bill $137.36, as so much charged therein for such travel and attendance.

The appeal is from the decision of the clerk sustaining the objection and making the deduction.

W. Robertson, for defendants.
CHARLES DANIELS, for plaintiff.

Bowen, Justice. The affidavit presented to the clerk on the adjustment of the costs, was insufficient to authorize the allowance of any travel fees of witnesses. It merely stated that the witnesses attended court and were examined as witnesses, and the distance of their residences respectively from the place of attendance. It should have stated that they traveled from their residences to the place where the trial of the cause was had, for the purpose of attending as witnesses. (4 Hill, 595; 5 How. Pr. Rep. 458.)

The plaintiff, however, only objected to the allowance of fees for the travel and attendance of two of the witnesses named in the affidavit, to wit, of the defendants. The clerk was, therefore, right in taxing fees for the one witness.

The affidavit, however, was sufficient to authorize the allow. ance of fees for the attendance of witnesses as charged, had not two of the witnesses whose attendance was shown, been the defendants themselves; and the question presented to the clerk, and on which he passed, was, whether a party to an action, when he introduces himself as a witness on his own behalf, should have witness' fees taxed for his own travel and Vol. XI.


Logan agt. Thomas & Haley.

attendance, under an affidavit such as was presented in this case. . In litigated cases, as it would appear this was, the parties thereto ordinarily attend the trials thereof when they do not expect to, and cannot, introduce themselves as witnesses. It is usually deemed necessary for them to do so; and if they attend as parties litigant, for the purpose of protecting their interests on the trial, they should not be allowed to recover fees as witnesses, although they might be sworn as such. In such cases, the inference would be, in the absence of proof to the contrary, that they attended as parties, and not as witnesses; that the primary and principal object of their attendance was to attend to their interests generally on the trial.

I very much doubt whether, in any case, a party, where he is sworn and testifies on his own behalf, should recover fees as a witness. But, if otherwise, such fees should not be taxed on the ordinary affidavit. To authorize the allowance, he should be required to show that he did not attend as a party, nor to attend to the conduct of the trial of the cause; and that the sole purpose and intent of his attendance was as a witness. In England, it has been held that a party, in such a case, may, under some circumstances, be allowed fees or expenses as a witness. (Howes agt. Barber, 10 Eng. Law and Equity Rep. 465.)

But Lord CAMPBELL, in giving the opinion of the court in the case cited, says :--" The simple fact of their (parties to actions) being examined as witnesses, must by no means be considered sufficient to establish a claim for their expenses as witnesses; and, if it appear that their attendance was unnecessary, or that they attended to superintend the trial of the cause, the claim ought to be rejected.”

I think that the clerk, on the evidence before him, was right in making the deduction from the bill.

The defendants now present affidavits for the purpose of showing that they attended the trial solely as witnesses, and that they were material and necessary, and would not have attended had it not bee. necessary for them to have done so as

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