The Act of 1777, which first ascertains the allowance of witnesses, directs that they shall be paid by the party at whose instance the subpoena shall have issued; and it is for his benefit that the charge shall be inserted in the bill of costs; secs. 33, 45. But a different regulation is introduced by the law of 1783, which provides that the witness shall be paid by the party cast, and contains a like direction as to the taxation of the ticket in the bill of cost.
Though the latter act does not require a construction which shall take away the remedy of the witness against the party who summoned him, yet I think that remedy is postponed until an execution shall have issued against the party cast.
I have always understood this to be the meaning of the act, and the law passed in 1796, for the purposes of reviving the witness' (205) remedy against the party who summoned him, would be superfluous upon any other construction. This act, too, was made expressly to amend and alter that of 1783, and extends only to cases happening in future; when it may be inferred that the Legislature believed they were giving a remedy which did not exist before.
Motion to set aside the nonsuit overruled.
NOTE. — See same case reported post, 500.