Batdorff's Administrators v. Eckert

3 Pa. 267 | Pa. | 1846

Rogers, J.

The daily pay allowed by the fee-bill for the attendance of witnesses at court, is intended as a compensation; and when they have received that, they are entitled to no more. And this is the foundation of the judgment in Curtis v. Buzzard, 15 Serg. & Rawle, 22, and Homer v. Harrington, 6 Watts, 336, which rule this case. The decree of the Common Pleas here, allows the witnesses pay for four days’ attendance, instead of one, in direct opposition to the cases cited. This indeed is a stronger case than those ruled, for here no difficulties arise as to the apportionment, as all the costs are to be paid by one person, who was the only defendant in all the suits. Nor does it interfere with the opposing dicta of Mr. Justice Kennedy in Homer v. Harrington, and Chief Justice Tilghman in Curtis v. Buzzard. The case supposed by them is of different parties and different suits, and of course of different transactions ; but here, although the plaintiffs are not the same persons, there is but one defendant, the controversy arising out of one and the same transaction, and he alone liable for costs.

The general rule established by the caáes cited is, that the witness is entitled to pay for each day of his attendance and no more, without regard to the number of suits in which he is called to testify; and if there be an exception, it arises from an overwhelming inconvenience, to which an apportionment among different parties would lead. As no insurmountable inconvenience exists" here, we are of opinion, the case falls within the general rule.

The judgment of the Common Pleas reversed, and the report of thfe auditor confirmed.