
    
      Court of Common Pleas, Dauphin County,
    
    
      December 18th, 1857.
    Swiler v. Casey.
    In an issue directed to try tbe validity of a judgment, no attorney’s fee can be taxed. When a witness attends at the request of a party, he is entitled to his costs. The mileage of a witness must be calculated by the distance by the nearest travelled route to the place of trial.
   By the Court.

This was an appeal from the taxation of a bill of costs in a feigned issue to try the validity of a judgment. The first item of fees objected to is the attorney fee of $3.00. As this is in no sense a suit commenced in court, it does not come within the fee-bill; and even if a verdict had been rendered, no judgment could regularly have been entered thereon; consequently, no attorney fee was chargeable. It must be stricken out. John McFadden is entitled to his fee as a witness. He was subpoenaed by Casey, and requested to attend by Swiler. It has been held by at least one of the judges of the Supreme Court (Coulter) that a witness attending on request is entitled to his pay and mileage, and such has, I think, been the general practice and understanding throughout the State. The witness can, in a case like the present, choose which of the parties he will look to for his pay; and by filing his bill against Swiler, he has elected to demand it of him. Of course the latter must be indemnified by Casey, who cannot insist on paying the witnesses in his own way, nor in any other manner than such as the witness may choose to take from Swiler. Witnesses subpoenaed but not examined, and examined but not subpoenaed, are entitled to pay; and, as has been already said, those who attend on request stand in the same footing. Where a witness is neither subpoenaed nor examined, but attends on request, the court must be satisfied that the party who procured his attendance, did it in good faith,-expecting to require his testimony. We have no doubt that the present witness would have been examined by the plaintiff, had not the defendant called him. Therefore he must be paid; and as he has elected to look to the plaintiff, the bill can be properly charged against the defendant. The mileage of this witness, as taxed, is illegal. He probably need not have travelled over seventy-five miles to reach this place. But he has charged by the way of the railroad to Philadelphia, thence here. We will allow no more than the necessary mileage by the nearest travelled route. The clerk will correct the bill accordingly.

Shell, for plaintiff.

Hawn, for defendant.  