A motion was made in the Circuit court by the defendant in error, for an order that the clerk should retax the costs.
It appears that the defendant in error, Donel-son, had been sued by Smith, in an action of slander, and a verdict and judgment rendered in favor of Donelson; that a large number of witnesses had been summoned and depositions taken by both partiesthat, on the trial, many of the witnesses for the defendant were not examined; that, in the-bill of costs made out by the clerk, the amount of which is included in the execution, the costs of all the witnesses are embraced, and that the motion to retax, was made at the second term, or one year after the judgment was recovered.
The court below overruled the motion.
.Before examining whether there is e'rror in the proceedings, it is necessary to decide upon an objection to the jurisdiction of this court, made by the counsel for Donelson. It is, that this court will not entertain a writ of error,-to reverse a judgment for costs, only.
This motion was made under the statute of 1807, which declares, that, “in any bill of .costs, there *395shall not be allowed the charges of attendance of more than two witnesses, to ■ any one fact;” and on the ground that the costs of witnesses not sworn, could not be taxed against the .opposite party. It is believed that the construction of that statute, is as much a matter for revision in this court; as of any other in our statute book, arid when a motion of the kind is made in proper time, and it appears from the record, that the inferior court has given a construction to the law which is, by this court believed to be incorrect, such error would be corrected here. — ■ Whether a motion to .relax costs, because one party showed a disposition to oppress the other by sum-' moiling too many witnesses, would be,the subject of revision, it is unnecessary to determinein this case the number summoned by each was equally great, therefore an intention to oppress.cannot .be presumed. The position that the costs of the witnesses not sworn, cannot be taxed against the opposite .party, can not be sustained. Such a rule would have the effect, in many instances, of lengthening trials, not for the purpose of securing justice to the parties, but to authorise a recovery by the successful party, of the costs of his witnesses. sThis would be intolerable. It was so decided in the case reported in the North Carolina Law Repository, 515, arid the inexpediency of a contrary doctrine, is apparent, as well as ■ the frequent injustice which would be worked by it.
To have a taxation of costs made under the statute ‘of 1807, it is certainly necessary that the application should be made during the term at which the trial-is had. Under our Circuit court'system, ño two successive terms are held by the same judge, and it would be impossible for any other to deter*396mine bow many points had arisen in the case to which it was necessary to introduce testimony. . We believe that the statute applies as well to.facts which may, collaterally or incidentally, arise in the progress of the trial, as such as are directly involved in the issue; and although only one witness may be examined as to some'facts thus involved, yet, the party summoning them, ifsuccessful, would have a right to recover the costs of two in number for every material fact. As it is highly improbable that any other judge than the one who presided on the trial,, can determine v/hat material facts wefe involved.- in the investigation, so it is reasonable to suppose that after the lapse of six or twelve months, the recollection of the judge who presided, would be sufficiently clear and distinct on the subject.
But, it is said, that unless applications of this kind can be made after the trial term, the law is a dead letter-: that it cannot be known, what witnesses are to be included in the bilk of costs, until after the adjournment of the court, as they are allowed five days from that time, to make the necessary oath of their attendance.
In reply to this, it may be- observed, that the subpoenas, and the subpoena-docket, will always afford ample means, to suitors, of ascertainining the number of witnesses summoned jn the cause; and, if it appeared, that more than the proper number were summoned, an- application should be made to the court, to instruct the clerk, on the subject.
The clerk certainly has no discretion to exercise, without such direction. It is his duty to insert in the execution all the costs which have accrued in the *397case, and, therefore, it cannot be said, when he has done no more than this, that his taxation has been illegal.
The judgment is affirmed.