Whether, prior to the act of Assembly passed in one thousand seven hundred and ninety-six, cap. 12, a witness had a right to charge the party at whose instance he had been summoned and attended, for such attendance at common law, for work and labor done; or must, for his remedy, resort to the party cast in the manner prescribed by the act of Assembly passed in the year 1783, cap. II. The 4th section of the act of Assembly, passed in the year 1783, cap. 11, ascertains the allowance of witnesses attending Court, and says that they shall be paid by the party cast; another act, passed in the year 1796, cap. 12, directs that witnesses may prove the amount due them for attendance, and recover the same from the party by whom they were summoned, before the final determination of the suit. However, the English practice, or the practice of this State prior to the (204) passage of the Act of 1783, might have been, I have heard of no instance since the passing of that act of a witness having sued for the amount due him before the suit was finally determined, and I suppose it was from an impression that no such suit would lie that the Legislature passed the Act of 1796. In a former suit, which the present defendant instituted against Bush, the present plaintiff was summoned by the now defendant as a witness; the present defendant, then plaintiff, *Page 179 obtained a judgment against the defendant. The plaintiff, a witness in that suit, instead of filing his tickets, the evidence of his debt, in the clerk's office, and having it inserted in the execution, by which means the defendant in the first suit would have been compelled to pay it (the person who really ought to pay it), he held it up a considerable time, and then instituted this suit against the present defendant. The latter had it not in his power to recover the costs for which this suit is brought, from the defendant in the first suit, owing to this conduct in the present plaintiff. Suppose the defendant in the first action in the meantime had become insolvent; if a recovery is had in this action the present defendant must bear the loss, without having been guilty of any neglect. I am of opinion that this action ought not to be sustained.