By the Comí.
Lumpkin, J.delivering the opinion.
[X.] If it were not for the well authenticated practice which has obtained in almost every circuit of this State, of not allowing cost to be taxed for witnesses who are not sworn, we should feel somewhat embarrassed as to- the proper course to be adopted.
The rule which has been established, is simple and practical, and easy to be understood. It cannot be doubted, however, that it frequently works much hardship and injustice to the successful suitor.
Admissions of facts may be made at the trial, which would render the examination of the witnesses unnecessary, though proof of such facts may be essential to the party’s case, and therefore, the attendance of the witnesses was indispensable.
So too, the testimony may be rendered unnecessary by the course of pleading; the decision of the Court upon matters of law, or the discontinuance of the cause by the adverse party, as in the present instance. Still, in all these cases, if the witnesses were summoned fairly to testify to facts which are material, but the cause takes such a turn that their testimony is not wanted, there is no good reason why the expense of their attendance should not be taxed against the losing party, it being a charge which the gaining party has necessarily incurred.
On the other hand, no rule could be well enforced, unless it goes to the extent of taxing the losing party with the attendance of all witnesses who are subpcenaed, no matter at what stage he is cast or discontinues his suit; and thus trust the whole matter to the fairness and integrity of counsel, under whose advice and direction the cause is usually prepared for trial.
A provision might be made to require the party to verify the facts by affidavit, whenever there were reasonable doubts or suspicion entertained, that witnesses had been unfairly summoned. This, perhaps, would be restriction enough, when it is recollected that the parties will probably be deterred from subpcenaing more *445witnesses than he honestly thinks to be necessary, from the fact that the event is uncertain and the expense may fall upon him.
But these are considerations to be addressed to the Legislature, rather than the Court, and to that body we are disposed to refer the subject, leaving the practice in the meantime, as we find it, which has grown up under our own Statutes. Should a contrary practice prevail in any particular circuit, for myself, I should feel unwilling to disturb it. Here the decision is in accordance with the practice in the Coweta Circuit, as admitted by counsel in the argument.
Judgment affirmed.