The defendant was a witness for himself. The statute allows a party who is successful in the suit the fees of his witnesses. The letter of the statute justifies the allowance, and I can see nothing on its part to exclude it. This construction may lead to abuses, as did the early practice under the statute before parties could be sworn in their own behalf. This *128was corrected by requiring an affidavit of the materiality and necessity of witness, and under that rule, when the affidavit was made, and it was apparent that a greater number were subpoenaed than was necessary, for the purpose of enhancing the costs, the court and its taxing officers disallowed the charges for such witnesses. The reasoning of Lord Campbell in Howes a. Barber (10 Eng. L. & Eq. R., 467), and the rule he established, seem to me to be correct. Under it, all abuse may be prevented. If a party can be sworn as to the cause of the action or defence, I think he is equally entitled to credit when he makes an affidavit as to his attendance as a witness. The defendant brought himself within the rule of Howes a. Barber, and had the defendants in Logan a. Thomas (11 How. Pr. R., 160) presented to the taxing officer the affidavits read on the appeal from the taxation, I think Hr. Justice Brown would have adopted the same rule. t The question is one which should be definitely settled by general rule of the court, or at general term; and for that purpose I shall hold that the adjustment by the clerk is correct. There is a clear distinction between the cases arising under the Code, and that in 6 Paige R., 170. I have have not access to 3 Abbotts’ Pr. R.
The motion for readjustment is denied.