charging the jury:
This is an action of assumpsit brought by the plaintiff against the defendant to recover an amount which the plaintiff claims is due and owing to him for services rendered the defendant as an expert witness in a trial before, a justice of the peace in which the defendant was plaintiff.
*438The plaintiff contends that the defendant requested him to attend said trial and give testimony as an expert witness, and agreed to pay him the sum of five dollars for each day’s attendance and mileage.
The defendant denies that he made any agreement to pay the plaintiff more than the usual and legal witness fees and mileage, all of which he contends he has paid.
The court instruct you that the plaintiff cannot recover in this case a greater amount than the difference between the amount the testimony shows the defendant has paid, and the legal fees and mileage. Any agreement to pay more than such fees would be against public policy and void. The law and rule of court, which authorize the payment of five dollars to a witness testifying in a case as an expert, does not apply to witnesses giving testimony before a justice of the peace, and any agreement to pay more than the legal fees is unenforceable in an action at law.
Verdict for appellant.