Curia, per
Earle, J.held that “ witnesses summoned by ticket only, might not be held liable to process of contempt, or otherwise, for refusing to attend; yet, if they chose to waive the informality, no one else could complain, and they were entitled to be paid, at least, their 2s. 4d. per diem, according to Bratton vs. Clendennen. (Str. R. 472.”)
Wardlaw Sf Perrin for the motion; Burt, contra.As to the witnesses subpoenaed by both parties, it was held that if the defendant had paid them before the taxation, and the plaintiff had not, then their costs should not have been allowed again; but if the plaintiff had paid them, not knowing that the defendant had done so likewise, then he was entitled to have whatever he had thus expended, taxed against the defendant. “In such case,” the Court observed, “the defendant could recover at law, from the witnesses, not the •sum which he himself had paid them, but that which they had improperly and fraudulently received a second time, and which was ultimately collected from him.”
The whole Court concurred