6 Watts 331 | Pa. | 1837
The opinion of the Court was delivered by
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
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
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.