
    [Philadelphia,
    February 6, 1836.]
    SAME against SAME.
    1. On the taxation of costs against a Defendant in an action at law, the costs of a Bill to perpetuate testimony were disallowed.
    2. Members of the bar are not entitled to witness fees for attendance in a Court in which they actually practice.
    3. To entitle a party to the costs of his witnesses and of the service of subpoenas upon them, it is not necessary that their names should have been inserted in the subpoenas by the Prothonotary, before delivering them to the party.
    4. It is not necessary that witnesses should attend before the Prothonotary on the taxation of costs, to prove their attendance on the trial of the cause. The fact may be proved aliunde.
    
    
      5. Witnesses who attended before the Prothonotary on the taxation of costs, to prove their attendance at the trial, held not to be entitled to fees for such attendance before the Prothonotary.
    The costs of the plaintiff in this case having been taxed by the Prothonotary, an appeal was taken from his decision. The material exceptions were as follows:
    1. To the allowance of the costs of a Bill to perpetuate testimony.
    2. To the allowance of “ witness fees” to members of the bar practising in the Supreme Court.
    3. To the allowance of “ witness fees” for persons whose names were placed in the subpoenas after they had issued, and without the knowledge of the Prothonotary; such persons not having been examined on the trial.
    
      4. To the allowance of fees for serving subpoenas on persons whose names were so placed on subpoenas.
    5. To the allowance of “ witness fees” for persons who resided in the City of Philadelphia, and who did not attend at the taxation.
    6. To the allowance of fees to witnesses for attending before the Prothonotary on the taxation of costs.
    Mr. Randall for the Defendant:
    1. The costs of a Bill to perpetuate testimony cannot be charged against this defendant. 1 Maddock’s Chan. 195. Act of 28 March, 1814, % 26.
    2. A person who is attending Court as a juror, is not entitled to fees as a witness. Nor is a Justice of the Peace when officially attending, 6 Binn. 397. The rule must be the same with respect to a member of the bar practising in the Court in which he is called upon to testify.
    3. 4. In this case the names of several persons were introduced into the subpoenas by the plaintiff's attorney, after they were taken out of the office. This is a fraud upon the Prothonotary; and the plaintiff ought not to recover any costs for the witnesses in such cases, or for the service of the subpoenas upon them.
    [Huston, J. — It is the constant practice to add names; and the Prothonotary cannot be injured if the legal fee is paid for every witness.
    Rogers, J. — The practice prevails throughout the state. Blank subpoenas are frequently taken out.
    Gibson, C. J. — There can be no doubt of the propriety of these charges.]
    5. If a witness does not attend the taxation of costs, after notice, the presumption is that he relinquishes his fees. A party ought not to be allowed to prove the attendance of witnesses; since he receives their costs in the first instance.
    [Huston, J. — It is certainly not necessary to produce the witnesses. If their attendance is proved by any competent person, it is sufficient. Even if the 'witness should be unable to state the number of days he attended, I think the fact might be proved aliunde.]
    6. The act of Assembly which gives fees to witnesses, speaks of “each day’s attendance in Court.” I understand that it is the practice in the District Court not to allow for attendance on taxation.
    
      Mr. Earle, contra,
    was requested by the Court, to confine himself to the 1st, 2d, and 6th exceptions.
    1. The record shows that the testimony was taken, to be used in this case. The defendant came in, and made himself a party.
    [Huston, J. — It is settled in England, that a demurrer will lie to a bill of this kind, if there is no impediment to the plaintiff trying his fight at law, unless the witnesses are old and infirm. There was a case of Blaine v. Chambers, before the late Judge Smith on the Circuit, in which the rule was declared to be the same here; and his opinion was afterwards confirmed by the whole Court.]
    2. There is no sound reason for excluding members of the bar from fees as witnesses. They are not required to be in attendance upon the Court, excepting when their causes are "on trial; and the fiction of their perpetual presence ought not to be allowed to operate against them.
    6. The witnesses attended the taxation in consequence of notice from the opposite party. This may be called “ attendance in Court,” within the act of Assembly; since the Prothonotary is an officer of the Court, and supposed to be in their presence.
   Per Curiam.

The costs of the bill to perpetuate testimony must be struck out, as not having been incurred in the cause, but in a distinct proceeding. The plaintiff may yet have the benefit of the evidence against some one else, as amply as she has had it, against the defendant; and it is unfair that he alone should bear the expense of it. The charge for the attendance, as witnesses, of gentlemen of the profession, who are in contemplation of law, always present in courts, where they actually practice, must also go out. So, also, the charge for the attendance of witnesses before the Prothonotary, at the time of taxation. The practice is to take the affidavit of the party at the foot of the bill, for prima facie evidence of its accuracy; and the witnesses therefore need not have been produced. The rest of the Bill is allowed.

Taxation confirmed, subject to the preceding exceptions.

Sergeant, J.

having been of counsel with one of the parties in the case of M‘Williams v. Swift, did not sit in this case.  