Stanly versus Hodges, 1 Tay. 274

Hall, J. The 4th sec. of the Act of Assembly passed in the year 1783, cap. xi, ascertains the allowance of witnesses attending court, and says that they shall be paid by the party cast ; another Act, passed in the year 1796, cap. 12, directs that witnesses may prove the amount due them for attendance, and recover the same, from the party by whom they were summoned, before the final determination of the suit.

However the English practice, or the practice of this State, prior to the passage of the Act of 1783, might have been, I have heard of no instance since the passing of that Act, of a witness having sued for the amount due him before the suit was finally determined, and I suppose it was from an impression that no such suit would lie, that the legislature passed the Act of 1796. In a former suit, which the present defendant instituted against Bush, the present plaintiff was summoned by the now defendant, as a witness ; the present defendant, then plaintiff, obtained a judgment against the defendant.

The plaintiff, a witness in that suit, instead of filing his tickets, the evidence of his debt, in the clerk’s office and having it inserted in the execution, by which means the defendant in the first suit would have been compelled to pay it, (the person who really ought to pay it,) he held it up a considerable time, and then instituted this suit against the present defendant. The latter had it not in his power to recover the costs for which this suit is brought, from the defendant in the first suit, owing to this conduct in the present Plaintiff.

Suppose the defendant in the first action in the mean time had become insolvent ; if a recovery is had in this action, the present defendant, must bear the loss, without having been guilty of any neglect. I am of opinion that this action ought not to be sustained. Taylor, J. The Act of 1777, which first ascertains the allowance of witnesses, directs that they shall be paid by the party, at whose instance the subpoena shall have issued ; and it is for his benefit, that the charge shall be inserted in the bill of costs ; sec. 33. 45.

But a different regulation is introduced by the law of 1783, which provides, that the witness shall be paid by the party cast, and contains a like direction as to the taxation of the ticket in the bill of cost. Though the latter Act does not require a construction, which shall take away the remedy of the witness, against the party who summoned him ; yet, I think, that remedy is postponed, until an execution shall have issued against the party cast.

I have always understood this to be the meaning of the Act, and the law passed in 1796, for the purpose of reviving the witness’s remedy against the party who summoned him, would be superfluous upon any other construction. This Act, too, was made expressly to amend and alter that of 1783, and extends only to cases happening in future ; whence, it may be inferred, that the legislature believed they were giving a remedy which did not exist before. Motion, to set aside the nonsuit, OVER-RULED.