As the witnesses were only prevented by an accident from being present at the opening of the circuit, and they actually arrived before the court opened on the second day, and before the cause had been reached on the calendar, I think they were entitled to fees. It is true that the plaintiff could not have made the necessary affidavit of the attendance of witnesses when the cause was put over on the morning of the first day; but as the witnesses had been subpoenaed from a considerable distance, it was not unreasonable to wait until the next morning for their arrival. If the parties had not arranged the question of witnesses’ fees by stipulation, the judge would, I presume, have suspended his order for putting off the trial so as to give a reasonable time for the arrival of the witnesses. I agree that witnesses must attend at the time for which they are subpoenaed, at the peril of losing their fees if any detriment'comes upon the party in consequence of their absence; and where they are not entitled to fees, they cannot be taxed against the opposite party. But where, as in this case, there is no fault on the part of the witnesses, and the party who subpoenaed them has sustained no damage in consequence of their absence, fees may be allowed and taxed against the opposite party.
Motion denied.