
    J. Johnson v. L. Wideman.
    
    A witness attending upon a sukpcSna ticket alone, witkout writ, is entitled to kis fees , from tlie party cast in tke suit.
    Wkere tke successful party kas paid witnesses sukpcenaed on both sides, wko kas ■ already keen paid, witkout kis knowledge, ky kis defeated adversary, ke skall, nevertkeless, kave tkeir fees taxed against tke latter.
    And tke party cast may recover at law, from tke witnesses, not wkat ke paid, but wkat tkey fraudulently received from tke otker party, to kis damage.
    Before Earle, J., at Abbeville, Fall Term, 1839.
    Appeal from taxation of costs. "Witnesses who had attended for both parties, (having been already paid by the defendant, who was defeated in the suit,) were afterwards taxed for the plaintiff. The clerk also allowed, for other witnesses who had attended for the plaintiff, upon subpoena tickets only, without any writ, the sum of two shillings four pence per diem.. Defendant’s motion to strike out both these charges was refused. It appeared that the witnesses subpoenaed by both parties, had been paid by the plaintiff as well as by the defendant.
    Defendant, on appeal, renewed his motion below.
    
      
       S. C. twice before—Dud. 325; Rice 325. An.
      
    
   Gloria, per Earle, J.,

held that “ witnesses summoned by ticket only, might not be held liable to process of contempt, or otherwise, for refusing to attend; yet, if they chose to waive the informality, no one else could complain, and they were entitled to be paid, at least, their two shillings four pence per diem, according to Bratton v. Clendennen”.

Wardlaw and Perrin for the motion;

Burt, contra.

As to the witnesses subpoenaed by both parties, it was held that if the defendant had paid them before the taxation, and the plaintiff had not, then their costs should not have been allowed again; but if the plaintiff had paid them, not knowing that the defendant had done so likewise, then he was entitled to have whatever he had thus expended, taxed against the defendant. “ In such case,” the Court observed, “ the defendant could recover at law, from the witnesses, not the sum which he himself had paid them, but that which they had improperly and fraudulently received a second time, and which was ultimately collected from him.”

The whole Court concurred. 
      
       Harp. 454.
     