Patten v. Moore et al.

In this ease, which is reported in 9 Foster 163, it was decided, that the witness was bound to answer the interrogatories proposed to him, and that the question was brought before the court substantially m the proper mode, called a demurrer to interrogatories. The only question now before us arises upon a motion that the witness should be ordered to pay the costs of the demurrer. The rule is laid down in the books of practice, that if the demurrer to interrogatories is overruled, the costs are to be paid by the witness. Dan. Ch. P. 1130-1; and Strathmore v. Strathmore, 11 L. J., N. S., ch. 215; Davis v. Reid, 5 Sim. 448; Parkhurst v. Lowten, 2 Swans. 194; Wardel v. Dent, 1 Dick. 334; Vailliant v. Dodamede, 2 Atk. 592, are cited as authorities. In the last case, which was decided in 1743, the question was treated by Ld. Ch. Hardwick as a new question; and he says, “ I am of opinion that the party.is entitled to have costs upon tbe application to the court; and if I was to lay it down as a rule, that no costs should be given in any case where a witness demurs, it would be of very bad consequence, and tend greatly to.the delay of the proceedings in this court, and in some cases it would be worth the parties’ while to put in such a demurrer for the sake of delay. As to the merits, I think it a proper case to give costs in, for it appeared, upon the arguing of the demurrer, that Mr. Bristow, (the witness,) came to the knowledge of the facts before he was concerned in the cause and he was ordered to pay five pounds costs.

That case, in its leading features, somewhat resembled the present.

It was ordered, that the witness pay the costs of the terms during which the cause was delayed, and the costs of the proceedings in taking his testimony.

Sawyer, J., having been of counsel, did not sit.