Howard v. Stent , 18 S.C.L. 272 ( 1831 )

Harper J.

delivered the opinion of the Court.

A witness who has been summoned, and attends Court, has certainly a good cause of action as for services rendered, against the party who required his attendance; and he may demand payment before he is bound to attend, or to give evidence. The successful party in the suit who has paid his witnesses, may recover the amount against the other party, as costs of the suit;But it is the established practice amongst us, that it is not necessary for him to have actually paid, in order to recover for the attendance of witnesses. He may recover whatever he shews, that he is liable and bound to pay; and it is the usual course for witnesses to forbear to demand their compensation, until the amount can be recovered from the losing party. In the present case I do not perceive what prevented the defendant from entering in his judgment against Gordon, the amount to which the plaintiff was actually intitled for his attendance as a witness. It is true, that if a witness should refuse to charge, or release his charge, for attendance, the party thus discharged of his liability to pay, could not recover against the other. But certainly the present plaintiff did not refuse to charge for his attendance. It is stated that he refused to receive forty-eight dollars and fifty cents, because he demanded more; and wished to appeal from the taxation of the clerk. If defendant had tendered him the forty-eight dollars and fifty cents, and he had refused to receive it, defendant might still be compelled to pay on suit brought. It seems to me, that defendant was prevented by nothing but his own neglect from recovering the amount in question from Gordon. The decree of the Recorder is therefore reversed, and a new trial granted,

Motion granted.