
    Nancy Crozier, plaintiff in error, vs. Samuel Berry, defendant in error.
    When a witness is rejected for incompetency, the cost for his attendance can only he collected out of the parly at whose instance he was snhpcenaed.
    Subpoena fi. fa. and illegality, from Randolph county. Decision by Judge Kiddoo, at November Term, 1858.
    The following is the agreed statement of facts, upon which the judgment in the Court below was pronounced, viz:
    In an action between Nancy Crozier and John Crozier, in which said Nancy was plaintiff, Samuel Berry was subpoenaed as a witness by said Nancy. Upon the trial Berry was sworn as a witness, but was objected to on the ground of interest; the objection was sustained, and the witness put aside. The case proceeded however, and said Nancy succeeded in obtaining a judgment, and the witness, Berry’s, fees were taxed and inserted in the fi. fa. issued upon the judgment against the defendant.
    It further appeared, that upon illegality or some proceeding had by defendant, the amountof Berry’s fees were stricken out. Whereupon, Berry proved his subpoena, a fi. fa. issued thereon, against Nancy Crozier, by whom the witness was subpoenaed, as provided by statute.
    To this fi. fa. Nancy Crozier filed her affidavit of illegality. The Court dismissed the illegality, and counsel excepted.
    Harris & Stewart, represented by Perkins, for plaintiff in error.
    Douglass & Douglass, represented by Robinson, contra.
    
   By the Court.

Lumpkin J.

delivering the opinion.

Under the Judiciary Act of 1799, the witness is entitled to prove his attendance and collect his cost out of the party at whose instance he is subpoenaed. True it maybe taxed in the bill of cost, and collected out of the party cast; but here this could not be done; because the witness was rejected for incompetency. And in a case made, the Court has decided that the defendant was.not .liable. Of course, the cost must be paid by the party at whose instance the witness was subpoenaed. It may be, and perhaps is, a hard case. We see no help for it.

Judgment affirmed.  