
    [Chambersburg,
    October 17, 1826.]
    CURTIS against BUZZARD.
    IN ERROR.
    Where there are several actions depending, by the same plaintiff against different defendants, and the parties agree that the verdict and judgment in one case shall govern all, and the same witnesses are examined in each suit, the plaintiff is not entitled to recover from each defendant the costs for the attendance cfF each witness, and mileage.
    On a writ of error to the Court of Common Pleas of Franklin county, it appeared that this was an action of replevin for sheep, brought by JLzabah Curtis against John Buzzard.' The plaintiff brought ten other actions of replevin against ten other persons, for sheep, all part of the same flock, and the property depending on the same title. It was agreed, that only one of these actions, viz. the one in which David Washebaugh was the defendant, should be tried, “and all the others should be governed by the verdict and judgment in that case, whether for the plaintiff or defendant; and, in case it should be for the plaintiff, then, in each of the other cases, the damages should be calculated by the number of sheep, in proportion to the damages found in that case.” The plaintiff obtained a verdict and judgment against Washebaugh, in which the costs of all the witnesses were taxed. The same witnesses were summoned in each suit, and the only question was, whether the plaintiff was entitled to recover from each defendant the costs for the attendance of each witness, and of mileage.
    
      M‘Culloch, for the plaintiff in error,
    observed that the agreement to try but one cause was not made until the time of swearing the jury. It would be unreasonable and unjust,to compel one defendaht to pay all the costs, and it would be difficult to apportion them. Another objection to the course pursued by the court below is, that the defendant against whom the costs are taxed, may prove insolvent, and thus the plaintiff lose his costs altogether. The circumstance of all the witnesses being summoned by the same plaintiff, can make no difference, because the court will not inquii’e into any case, except the particular one in which the costs arise.
    
      Crawford, for the defendant in error,
    answered, that the act of assembly considered a certain sum per day a sufficient compensation for attendance, diet of the 27Ih of February, 1821, Purd. Dig. 295. Suppose the verdict had gone against the plaintiff, must he have paid the witnesses eleven times over? This will scarcely be contended for, and yet the opposite argument goes that length. A justice of the peace is not allowed costs, as a witness for the commonwealth on the first day of the court, when he attends to return his recognizance. 6 Binn. 397.
   The opinion of the court was delivered by

Tilgiiman, C. J.

Unless the plaintiff is liable to the witnesses for their attendance in each suit, he cannot recover it, because he can recover no more than he pays, or is liable to pay. Now, it would be extraordinary, indeed, if a witness could demand the price of eleven days’ attendance, when in fact he attended but one. The law admits of no such extravagancies. He is to be paid a certain sum fixed by law, for each day’s attendance, and, having received that, he is entitled to no more. The principle which must govern this case has been established by this court. We decided, that a justice of the peace, who attends as a witness in a criminal case, is not entitled to any allowance as a witness on the first day of the court, because it is his duty to attend on that day, and make return of the recognizance taken by him. 6 Binn. 397. So also we decided, that when the same parties referred two suits to the same arbitrators, who transacted business in each of the suits on the same day, they should be allowed but one day’s pay, because they were employed but one day.

In the present case, the witnesses received full compensation for each day’s attendance, in the action against Washebaugh. Therefore they can demand no more from the plaintiff, nor can the plaintiff recover it from the defendant. The Court of Common Pleas was right, therefore, in refusing to tax the attendance of those witnesses as costs in this case. 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.

I am of opinion that the judgment should be affirmed.

Judgment affirmed.  