Horner against Harrington, 6 Watts 331

The opinion of the Court was delivered by Kennedy, J.

The question presented by the first error assigned is; has the defendant, against whom four several suits had been brought in the same court to the same term, by as many different plaintiffs, where all the suits were set down for trial at the same term, in each of which he subpoenaed and had the same persons attending as witnesses, after having succeeded in each case, a right to recover from the plaintiffs, severally, therein the per diem allowed by law, to his witnesses for their attendance as such at court, so as to give him four times the amount that he would have been entitled to, had there been but one suit.

The solution of this question depends on the solution of another; that is, whether the witnesses have a right to demand of such defendant only a single per diem for their time, during which they attended as witnesses for him; or have a right to receive from him a per diem in each suit, for' every day they attended, so as to obtain in amount, four times as much, as if they had been subpoenaed and attended only in one suit.

The 13th sect, of the act of 1821, to alter and amend the fee bill, enacts, that “ the fees to be received by witnesses shall be as follows, viz. each day’s attendance at court, when the witness does not reside in, or within one mile of the county seat, 624 cents; each day’s attendance at court, when the witness resides in, or within one mile of the county town, 50 cents.” The allowance here expressed, it must be understood, and so it has ever been held, is to be paid to the witness by the party, at whose instance or on whose behalf he shall have attended at court; and the witness can look to no other for it.

Now it is perfectly obvious that the allowance, mentioned in the act for each day’s attendance, was intended by the legislature as an indemnity or compensation to the witness, and not as a penalty to bé paid by the party; and when the witness is required and has attended in one case only it is very clear, that he can neither claim nor receive more.

Whether it be a sufficient allowance to compensate or indemnify him fully for his loss of time and expenses in attending court, is a question which this court or the court below cannot undertake to decide; nor ought it to have any influence upon the determination of the question before us, unless the language of the act were so ambiguous as to render the intent of the legislature doubtful. This, however, is not the case; and indeed it is very possible that the legislature, never supposed that the allowance, provided by them, would, and never meant that it should, be a complete indemnity to the witness.

They may have intended that every controversy or suit in court should be carried on and determined with as little expense as possible to the parties; and that it should not be made a money-making business, to either witnesses or jurors, whose attendance might become necessary, in order to have justice done between the parties litigant, without subjecting them to such an amount of costs, as in effect might be equivalent to a sale of it.

We are, therefore, inclined to think, even if this question were now presented for the first time, that the witnesses of a party cannot claim from him more than one per diem for the same day’s attendance at court, though they may have attended for him in more cases than one; and consequently, as the party succeeding in the suit can only recover from his adversary, what he was bound to pay his witnesses, the defendant here is only entitled to recover from the plaintiffs in the several suits against him, an allowance of a single per diem to each of his witnesses for each and every day that they respectively attended the court in any one or more of the cases.

And this allowance we also think the defendant has a right to recover in any one of the suits he pleases, if the witnesses charged for, actually attended in that case; or he may apportion the amount, if he chooses, by charging for some of his witnesses in one suit and charging for others in the other suits; but not so as to charge for the same witness his full per diem in any two or more of the suits. But the very question, raised here, was decided in conformity to this principle, in Curtis v. Buzzard, 15 Serg. & Rawle 21.

It does not appear to me that there is even a shade of difference between that case and this.

The mere circumstance of the parties having agreed there, at the time of swearing the jury in the first sxfit, that the other suits should be governed by tire verdict and judgment rendered in the first, which the plaintiffs refused to agree to here, cannot deprive the witnesses of any portion of the amoxrnt, which they, in either case, would otherwise be entitled to demand from the party at whose instance they attended; and as the amount that the party is bound to pay his witnesses, must determine the amount that he shall be entitled to recover from his adversary on that account, it is clear that the circumstance mentioned can make no difference between the two cases.

We, therefore, think that the defendaxrt can claim no more than a single per diem and mileage for each of his witnesses, and thfat the court below erred in directing the taxation of costs in this respect otherwise. As to the second matter assigned for error, we are of opinion the court were right in deciding that the defendant was entitled to recover from the plaintiffs in each suit for the service of the subpoena issued therein, upon as many of the witnesses named in it as it was actxxally served on.

It is proper to allow the party for such service in every case, because it is necessary that he should take out a subpoena for his witnesses in each case, though they may be the same, otherwise he may not be able to compel their attendance and to make them responsible to him for his loss, on account of their non-attendance, if they should fail to do so.

And as the expense and labour of serving each subpoena, exclusive of the mileage attending it, must be the same, there is no reason why the party, entitled to recover costs, should not be allowed in the taxation thereof, for the service of his subpoena upon each witness. Bxxt as regards the tnileage, we think tlie court erred. For the distance was travelled but otrce in serving the subpoenas in the four cases, and of course was precisely the same, and no more than it would have been in case of their having been only one suit.

He is entitled, however, to recover the miíeáge, at his election, in either of the suits, according to the actual number of miles it was necessary to travel in order to serve the subpoenas, but no more; or, if he pleases, we see no objection to his apportioning it among the plaintiffs ixr two or more of the suits; but we think he ought not to be compelled to do so, for this might occasion great delay in collectixrg, if not a loss of part of the costs, in cáse some of the parties should be unable to pay. In the third error, we perceive no just ground for complaint.

The plaintiffs in the several suits have no connection whatever Ivith each other, as regards the alleged causes of action. And the per diem that is allowed to the successful party on an appeal from the award of arbitrators may be 'considered partly in the nature of a compensation to him for the loss of his time in attending court on account of it; and partly in the nature of a penalty imposed upon the other party for having unjustly been the cause of such loss of time.

Here the plaintiffs in each suit, by having taken their respective appeals from the award of the arbitrators, may be said very truly to have been the occasion of the defendant’s having had to attend court on account of the appeals so taken; and seeing the plaintiffs in each suit have been alike in fault, why should they claim to be let off by paying a part of the penalty imposed upon them, for having failed to support their respective appeals and make them good? We are unable to discover any good reason why the plaintiffs in each case should not pay the defendant, who was the appellee, his' full per diem.

We think, that according to both the letter and meaning of the act on this subject, they are bound to do so; and that the defendant is, therefore, justly entitled to recover from the plaintiffs in each of the four cases his per diem. It may be proper, however, to remark here, that we do not wish it to be understood, that we accede to the opinion of the late chief justice, as expressed in the close of the report of the case of Curtis v.

Buzzard, 15 Serg. & Rawle 22, where he says, “if it should happen that the same person should be summoned, as a witness by different parties in different suits, the court may easily do justice by apportioning the costs of attendance among the persons by whom the witness was summoned.” In practice, I have never known such an apportionment asked for or made. It would certainly be attended with great inconvenience, if not absolute impracticability, in some cases, to attempt to carry it into execution.

We are rather inclined to think, that, where a person has been summoned as a witness, by different parties in different suits, though it be to attend the same court at the same time, he has a right to demand and receive his full per diem from each party, by whom he was so summoned; and that it would be no plea in bar against such claim, for any one of such parties to show that the witness had been paid by another of them for having attended as a witness on behalf of the latter in his suit.

The judgment of the court below is reversed, and it is considered that the defendant recover his costs in each case, from the respective plaintiffs therein, to be taxed agreeably to the principles laid down above.