The Hawaiian gazette., 1894-11-02
OPINION OF THE COURT BY FREAR,

The question presented by the eX-
ceptions Is whether the Circuit Judge
erred in taxing against the plaintiff
the costs incurred under a commits
sion issued at the instance of the de-
PENDANT for the examination of Ger
tain witnesses in Sydney, New South
Wales.
The statute expressly provides that
costs of this nature shall be costs in
the cause land therefore follow the
Judgment which in this case was for
the defendant) unless otherwise di-
rected by the judge who orders the
issuance of the commission or who
tries the case, or by the court in
which the action is pending. Oh.
XAAII, Sec. 9, Laws of 1876, Comp.
Laws, p. 1854. This statute, if it does
not make the ruling of the trial judge
final, at least gives him large discre-
ton, with the exercise of which this
court should not interfere except in
a very clear case of error. The ques
ton is not one of pure fact as to
whether the costs were incurred, or
one of pure law as to whether the
costs are such as are covered by the
statute, but one involving a consider
alton of what is just and proper
under all the circumstances of the
ase,-with which the trial judge is
especially familiar.
The presumption is that the costs
should be allowed, and it is incum-
bent on the defeated party, if he de-
sires exception from the general rule
prescribed by the statute, to show
sufficient cause for such exception.
This he seeks to do in the present
case by showing that the testimony
taken in pursuance of the commission
was not offered in evidence at the
trial and that, if it had been offered,
it would have been rejected because
irrelevant.
The mere fact that the testimony
was not used is not of itself sufficient
ground for dissllowing the costs. A
defendant may be justified in procur-
ing dispositions and yet because of
contingencies which can not be fore
seen it may turn out afterwards to
be unwise or even impossible to have
the dispositions read to the jury, as,
for instance, if the witnesses them
selves are present at the trial. In
this instance it is cOntended by the
defendant that the dispositions were
not used because of an agreement
made between the parties after the
plaintiff had rested, that defendant
should put in only his own testimony
and two dispositions not in question
here and that plaintiff should put in
no rebuttal The object of the agree
ment, as we gather from the argu-
ment, was to hasten the conclusion of
the trial, it being then Saturday, the
last day of the term. If the deposit
ions were admissible and were not
used merely because of this agree
ment, the costs certainly should be
taxed to the plaintiff, for the defend
ant could not have known at the
time the commission issued what
agreement the plaintiff might be
willing to make during the progress
of the trial. The question is not !
whether the dispositions we're in fact |
used or not, or even whether they |
might have been used, but rather
whether the procuring of them was a |
justifable precaution on the part of |
the defendant in preparing for his
defense.
The plaintiff set the proceedings
in motion. The action, which was
for Islander, promised to be vigorous
ly aud hotly prosecuted. 1t was for
$4,000 damages. The defendant
could not be expected TO take risks
in the preparation of his defense.
The alleged slsnderous words con
cerned the relations between the
plaintiff and his adopted daughter,
and the fact sought to be proved by
the dispositions was that the adopted
daughter had previously been nurse
Or governess in the family of one of
plaintiffs relatives. This fact, the de-
PENDANT contends, was admissible to
show, in connection with other facts,
that the words admitted to have been
uttered by him, and which were SINH
ar in part to the words attributed to
him in the complaint, and which
we're capable of a meaning not
were in fact SO intended
and understood, and therefore were
lot actionable. In other words the
testimony was admissible, it is con-
ended, to explain the defendants
angusge. The whole evidence is
Tot before US. 1t is not always pos
ible to say from an inspection of
he pleadings just what evidence {
5 or is not admissible. Much de-
,ends sometimes upon what other
violence has been offered and admit :
ed. But this much appears; that
,ther evidence similar to that ID
question was admitted without {
objection that before applying for
be commission defendants counsel
equested plaintiffs counsel to admit
be fact to prove which the deposit |
ons were obtained, but that the lat /
er refused to do so; that plaintiffs {
ounsel made no objection to the s
ssusnce of the commission, but on c
be contrary expressly consented /
hereto IN writing and without d