
    Rightman Bagley ads. Stephen Clement.
    ■'Where a witness had been subpanaed by the defendant, and the case was decided in his favor, and execution issued out and satisfied, the witness having neglected to have his attendance taxed, sued .the plaintiff before a justice of the peace, Jleld that the witness could not recover, there being no privity of contract.
    Tried before Judge Colcock, Fairfield, November Term, 1822.
    SUIT was brought before a justice by S. Clement, against R. Bagley, on two subpoena tickets, served upon S. Clement by Robert Knox, in the case of said R. Bagley vs. R. Knox, and on which 8. Clement proved, twelve days attendance. The justice gave a decree for S. Clement, and R. Bagley appealed to the Court of Common Pleas.
    The suit between R. Bagley ¿y R. Knox, in which 8. Clement attended as a witness, had been decided against Bagley, execution issued and returned satisfied.
    The presiding Judge affirmed the decree of the justice.
    The defendant moved the Constitutional Court for a new trial, on the following grounds :
    1st. Because Clement had lost his right of recovering his demand against Bagley, by neglecting to have his subpoenas taxed, and inserted by the clerk in the execution,
    2nd. Because there was no privity of contract betweejs Ptym$nt and Bagley.
    
    
      
      Peareson, for the motion,
   Mr. Justice Richardson

delivered tbe opinion of the court ;

Where a party to a suit at law has subpoenaed a witness, which witness, in pursuance of the subpoena, attends the trial, there is no doubt that the witness has a right of action against such party for his legal costs. This right arises from an implied contract, to pay for the time lost by the witness, while in the service of the party suppcenaing him; but there can be no .such contract implied between such witness and any other party to the sáme suit at law. It is true that when either party obtains a verdict, a decree at law, &c. he may have the legal costs paid or to be paid his own witnesses, taxed, and may recover such costs from the party against whom the verdict or decree lias been obtained, by virtue of an act of the legislature. But this can be done in the court only where the decree or verdict has been obtained. It is allowed to the successful party, under the supposition that he has been put to the same expense by reason of the suit. In a word, the party subpcenaing is liable to his own witness, and in case of success may recover against the opposite party ; but it does not follow that the witness can do the same. It would, too, be altogether needless, if not very dangerous, to suffer a magistrate to tax the costs arising out of a suit, not carried on before himself. Such costs are always taxed by the proper officer of the court, and mistakes would arise, if any other tribunal should intermeddle. In cases like the one before us, it would be suffering the magistrate in effect, to review the taxation of costs, and to increase or diminish those allowed by the Circuit Court. The attorney, clerk, ■sheriff, or witness having costs disallowed by the highest -court, might appeal to the equity and justice of the court for the trial of small and mean cases.

The motion is therefore granted.

Justices Nott, Colcoch, Gantt and Johnson, concurred.

contra.  