
    Smith vs. Barger.
    A witness in a civil suit in this State, is bound to attend and give evidence whor# subpcenaed, although the party summoning him, did nolfender or OiTer him his necessary expenses.
    It is not necessary for the subpoena to be set out verbatim, in a scire facias, issued to enforce the penalty for non-attendance. Tiiesubpmna is-in the nature of a record, and the sci.faneed only set it out substantially.
    T,t is not necessary, that the witness should have been summoned in the county in which lie resided, to incur the forfeiture of one hundred and twenty five dollars for non-attendance. A legal summons, executed upon him personally, or left at hiV place of residence, is sufficient.
    This a proceeding to recover of the plaintiff in error, the' penalty of one hundred and twenty-five dollars, for failing to attend as a witness. The scire facias is as follows;
    “Whereas, heretofore by process of subpoena, issued from the circuit court, for the county of Knox, at the instance of Barbara Barger on the 21st, Dec., 1832, Thomas Smith was duly summoned to appear in our circuit court for the county of Knox, to be held on the second Monday of February, 1833, at the court house in Knoxville, to testify, and the truth to speak, in a cause pending in our said court, wherein the said Barbara Barger is plaintiff, and John Robinson is defendant, on behalf of said plaintiff.
    And whereas, at our said court, began and held for the county of Knox, at the court house in Knoxville, on the second Monday of February, 1833, the said Thomas Smith being solemnly called to testify in said cause, on behalf of said Barbara • Barger, came not; therefore, on motion of the attorney for the plaintiff, it is considered by the court, that for such his contempt, he forfeit the sum of one hundred and twenty-five dollars to the plaintiff, unless he appear at the next term of this court, and show sufficient cause why the judgment should not be made absolute. You are therefore commanded, <&c.,io summon” &c.
    The plaintiff in error, pleaded to the scire facias, that the defendant, in error, did not tender to him his expenses and charges, for attending court as a witness for her. To this plea there was a demurrer, which was sustained by the circuit court, from which judgment, this appeal in error is prosecuted.
    
      
      Geo. S. Yerger, for plaintiff in error.
    
      G. W. Churchwell, for defendant in error.
   GReen J.

delivered the opinion of the court.

The first question for consideration, is, whether a plaintiff is bound to tender the expenses of a witness, as a condition pre-' cedent to his right to recover the penalty given by statute, for non-attendance. .By the act of 1794, c. 1, §. 29, it is provided, that every witness being summoned to appear in any of the courts of the state, in manner therein directed, shall appear accordingly, and continue to attend from term to term, until discharged by the court or the party at whose instance he may have been summoned, and in default thereof, shall forfeit and pay to the party at whose instance,the subpoena issued the sum of one hundred and twenty-five dollars.

By the same act, a witness summoned to attend in the county in which he lives, is allowed fifty cents per day; and when compelled to attend without the county, he is allowed one dollar per day, and one dollar for every twenty-five miles he may travel in going to, and returning therefrom. For his attendance he is authorised to obtain a certificate from the clerk, and to recoverthe amount from the party summoning him.

We are of opinion that the common law rule, that a witness’ expenses should be tendered before he should be compelled to attend the court, is abrogated by this act of assembly. The legislature had the whole subject before them, and give to the witness a"specific compensation, and a right to recover that compensation from the party by whom he may be summoned, but it is his imperative duty to attend court until he is discharged on pain of forfeiting the one hundred and twenty-five dollars. His discharge by the party summoning him, or his incapacity to attend, are the only excuses mentioned in the act, and the only ones, which in our opinion exist. We cannot say that he shall be excused jf his expenses be not tendered, when .the legislature mention no such excuse, but say he shall attend when summoned, or incur the forfeiture. It is manifest that the legislature intended the allowance per diem, and for mileage tobe the entire compensation to which the witness should be entitled. That it was not contemplated that any part of this pay should be tendered before hand, we infer from the fact, that the failure of the party to make such tender is not mentioned in the act, when other grounds of excuse are particularly set forth.

It is provided in the 20th section of this act, that where a suit may be accommodated and settled in vacation, and the party summoning a witness may fail to discharge him, the witness Attending, may make ®ath of the facts, obtain a certificate, and recover from the party summoning him, the same allowance which is given to other witnesses for their attendance. This shows that the legislature did not contemplate that any tender was to be made, for in this case the witness would attend but one day, and had the allowance for that been tendered to him, there would have been nothing to recover. This provision too, is in the same section, and immediately after the provision in which it is declared the one hundred and twenty-five dollars, shall be forfeited for a failure to attend. It is manifest they intended he shall be compelled to attend, and therefore, they give him the right to recover his allowance.

2. It is insisted, the subpoena ought to be set out in terms in the scire facias. This is not necessary. The subpoena is in the nature of a record, and the scire facias need only as in other cases set it out substantially.

3. It is argued that the scire facias ought to show that the subpoena issued to the sheriff of the county, in which the witness resided. This it could not do. It is founded on the subpoena, and could not state any fact which is not shown to exist by the subpoena. The fact of the place of residence of the witness, does not appear by any thing in the subpoena, or return of the sheriff. It is a mistake too, to suppose that the penalty is only given in cases where the witness is summoned m the county where he resides. The penalty is given in all cases, where the witness may have been summoned in the manner directed in the 28th section, that is, either by personal service, or a copy of the subposna being left at his house The judgment must be affirmed.

Judgment affirmed.  