
    Robert Howard v. John Stent.
    The refusal of a witness, to abide by the clerk’s taxation of his costs, is not a waiver of his right of action against the party, by whom he was subpoenaed, for the sum to which he is actually intitled for his attendance.
    The successful party in a suit is intitled to enter judgment for all the costs which he has incurred in its progress, although he might not have paid them at the time of signing judgment; and his omission to include in his judgment the costs for attendance of a witness, subpoenaed by him, will not, without an express waiver, exempt him from his own liability to the Witness.
    Tried in the City Court of Charleston, at July Term, 1830.
    Summary process for the costs of plaintiff’s attendance as a witness for the present defendant, and under a subpoena from him, in a suit, wherein the present defendant was plaintiff, and John Gordon defendant. The defence was that plaintiff had waived his claim, and the following facts were relied on as evidence of waiver. Stent having succeeded in his suit against Gordon, and being about to enter up judgment, called upon plaintiff, and the other witnesses, whom he had subpoenaed, to render their bills: plaintiff accordingly presented a bill for one hundred and five dollars, which the taxation of the clerk reduced to forty-eight dollars and fifty cents; but plaintiff refused to abide by the taxation, and insisted that Stent should appeal from it. Stent’s attorney informed him it was useless to do so, as the taxation was in exact conformity with the decisions of the Court of Appeals on the subject; and he advised plaintiff to be satisfied with the sum taxed by the clerk, and to consent to judgment being signed for that sum. Plaintiff still refused, and Stent’s attorney entered judgment without including any sum whatever for the costs of the present plaintiff; and Gordon having immediately afterwards paid the judgment in full, satisfaction was duly entered on it. The plaintiff subsequently consented to receive the sum taxed by the clerk, and upon Stent’s refusal to pay, brought this action.
    His Honor, the Recorder, held, that plaintiff’s refusal to consent to judgment being signed for the sum taxed by the clerk, amounted to a waiver of his claim. Stent had no means of compelling his consent, nor was he bound to wait for his own money, until plaintiff would consent. The refusal of plaintiff bad deprived Stent of his recourse against Gordon, and it would be unreasonable that Stent should be made the sufferer. Decree for defendant. Plaintiff appealed, and now moved to reverse the decree.
    Yeadon, for the motion.
    Hunt, contra.
    
   Harper J.

delivered the opinion of the Court.

A witness who has been summoned, and attends Court, has certainly a good cause of action as for services rendered, against the party who required his attendance; and he may demand payment before he is bound to attend, or to give evidence. The successful party in the suit who has paid his witnesses, may recover the amount against the other party, as costs of the suit;But it is the established practice amongst us, that it is not necessary for him to have actually paid, in order to recover for the attendance of witnesses. He may recover whatever he shews, that he is liable and bound to pay; and it is the usual course for witnesses to forbear to demand their compensation, until the amount can be recovered from the losing party. In the present case I do not perceive what prevented the defendant from entering in his judgment against Gordon, the amount to which the plaintiff was actually intitled for his attendance as a witness. It is true, that if a witness should refuse to charge, or release his charge, for attendance, the party thus discharged of his liability to pay, could not recover against the other. But certainly the present plaintiff did not refuse to charge for his attendance. It is stated that he refused to receive forty-eight dollars and fifty cents, because he demanded more; and wished to appeal from the taxation of the clerk. If defendant had tendered him the forty-eight dollars and fifty cents, and he had refused to receive it, defendant might still be compelled to pay on suit brought. It seems to me, that defendant was prevented by nothing but his own neglect from recovering the amount in question from Gordon. The decree of the Recorder is therefore reversed, and a new trial granted,

Motion granted.  