I dissent in this case. In the case of Russell v. Ashley, Hempstead’s Rep. 549, the court, in passing upon a similar statute, said: “Indeed, a witness residing more than one hundred miles from the place of trial is beyond the coercive power of a subpoena. The party may take his deposition, but cannot compel him to attend at court and give oral testimony. This has been expressly held by the Supreme Court of the United States, in the case of the Patapsco Insurance Company v. Southgate, 5 Peters, 615. The party desiring his testimony has rio right to issue a subpoena to coerce his attendance, and, if he does, he must pay the costs incident thereto, and not throw them upon the other party.”
. In the present case the witnesses were not compelled to obey the subpoena, and their attendance upon the -court was voluntary. The rule is so firmly established in this State that statutes 'regulating costs are strictly construed against the party claiming them as to render a citation of authorities unnecessary. The decisions of the -courts of other States which have passed upon similar statutes are in hopeless conflict. Most of the decisions on the question are -collected in a note in 10 Am. & Eng. Ann. Cas. 397. They appear to be about equally divided in numbers, but we think the rule that fees should not be allowed witnesses in cases where the subpoena does not amount to compulsory process and where the witnesses may disregard it is more in -accord with our previous decisions upon the allowance of costs and fees, and is a protection to the parties to the suit against unnecessary and vexatious costs.
This construction works no hardship upon the witnesses because their attendance -has been voluntary, and not in obedience to the order of the court. It works no injustice upon the parties to the suit, for we have a statute which provides that where it is made to appear that the testimony of a witness is important and that the just and proper effect of his testimony cannot, in a reasonable degree, be obtained without oral examination before the jury, the court may, at its discretion, order the personal attendance of the witnesses to be compelled although such witness may otherwise be exempt from personal attendance by law. Kirby’s Digest, § 3159.
Mr. Justice BaTTu? concurs.