dissenting :
In my opinion witnesses who attend court at the request of a party without the service of a subpoena are entitled, under the statute, to fees and mileage for attendance. It is claimed that the words ‘ ‘ required to attend ’ ’ (2 Comp. Laws, 2742) confine the allowance of fees to witnesses who are required to attend court by virtue of legal process. In support of this view the decisions of the federal courts, which hold that “ pursuant to law ’ ’ means upon service of process, are cited. The statute of this state does not, however, confine the payment of fees to witnesses who are required to • attend court pursuant to law, unless this construction necessarily follows from the use of the word “required.” It is true that this word is more frequently used as asserting a right, or as a positive demand, “to claim as by right and authority ;” but it is also defined as meaning, “to ask as a favor; to request.” (Webst. Diet.) We gain but little light in searching for the definition of this word. It has been held in one case that the words “request” and “require,” although derived from a common source, may, and often do, have a meaning radically different (Johnson v. Clem, 27 Alb. Law J. 444) and in another case it is said that these words have the same origin. “ Usage has given to them somewhat different meanings, which, however, are *236more distinctions in intensity than in effect or substance.” (Prentice v. Whitney, 8 Hun 301; Abb. Law Dict. “Request.”)
I think it was the intention of the legislature that witnesses should be paid, for their dttenclance at court without reference to the means employed in procuring their attendance. Witnesses may be required to attend court by agreement, or by the request of a party, without the service of a subpoena; and if they do so attend, they can, in my opinion, collect their fees for mileage and attendance from the party at whose request they were “required to attend.” The fees thus paid would, it seems to me, be a necessary disbursement in the action which could, under the provisions of the statute, “be taxed as disbursement costs against the defeated party.”
It is true, as was said by the supreme court of Oregon, “that the statutory means of compelling the attendance of witnesses is by subpoena duly served ; but we are at a loss to see how any party cau be injured in having to pay mileage and attendance merely for the witnesses of an adversary who attends upon request or agreement, when the additional expense of officers’ fees and mileage for issuing and serving of a subpoena, swelling largely the claim for disbursements, could do no more than procure the attendance of the witness.” (Crawford v. Abraham, 2 Or. 166.)
Substantially the same views have been repeatedly expressed by the supreme and superior courts of New York; “Witnesses are entitled to their fees from the party at whose instance they attend, whether they are subpoenaed or not. The non-service of a subpoena would be no defense for the party when sued by a witness for his fees, who had attended as his witness at his request. Nor is it possible to perceive how the want of a subpoena cau relieve the unsuccessful party from the payment of the fees of his adversary’s witnesses.” (Wheeler v. Lozee, 12 How. Pr. 448; Vence v. Speir, 18 How. Pr. 168.) “The fee bill gives compensation to witnesses for daily attendance upon court; it does not say anything about attendance in obecli*237ence to subpoena; if subpoenaed there is an additional allowance for cost of service. This is necessary to enable a party to compel attendance. The defendant, being liable to these witnesses for their cost, is entitled to the bill as it has been taxed.”. (Lagrosse v. Curran, 10 Phil. 141. See, also, Farmer v. Storer, 11 Pick. 241; Gunnison v. Gunnison, 41 N. H. 128.)
I also think that witnesses who attend court in two or more cases, are entitled to fees for mileage and attendance in each case. (Flores v. Thorn, 8 Tex. 382; Robison v. Banks, 17 Ga. 215; McHugh v. Chicago & N. W. R. Co., 41 Wis. 81; Willink v. Reckle, 19 Wend. 82; Hicks v. Brennan, 10 Abb. Pr. 305; Vence v. Speir, 18 How. Pr. 168.)
I am, therefore, of opinion that the judgment of the district court should be affirmed.