¶1—It was irregular for the defendants to enter judgment on the discontinuance of the plaintiffs’ attorney. If the costs were not paid by plaintiffs, the action was not in fact discontinued. (Jennings a. Fay, 1 Code R., N. S., 231.)
¶2The defendants might then proceed to dismiss for want of prosecution, or put the case on the calendar and dismiss it when reached. The defendants’ attorney was irregular in entering the judgment.
¶3The reference to this irregularity contained in the notice of motion, I consider a sufficient compliance with the rule. The notice that the motion is made to set aside the judgment for irregularity, on the ground that it is improperly entered, seems to refer sufficiently to the matter to apprise the party that it is claimed that the judgment has been entered without authority. The judgment and execution must be set aside.
¶4The rule in regard to the fees of witnesses attending from other States, is properly laid down in Wheeler a. Lozee (12 How. Pr. R; 446).
¶5The party to the action claiming the fees of the witness, must prove, by affidavit, the residence of the witness, that he travelled from thence to the place where the trial was to be had for the purpose of attending as a witness, and that the witness was material and necessary. The charge should be for the number of miles the witness travels from the State line to the place where the trial is to be had. The distance should be estimated by the nearest usually travelled route from the residence of the witness. He is not required to travel a shorter route on which there is no public conveyance, nor can he go an unreasonable distance round in order to find a public conveyance.
¶6The defendants’ affidavits must show these facts: where the witness resided; where he crossed the State line—or where the most usually travelled route from his residence to this city would cross the State line.
¶7The disbursements actually incurred in preparing for trial *306at the January term, 1860, are allowable, but not the term fee.
¶8I think the witness was entitled to fees in each case, if he actually attended in each case. The court' cannot go into a nice distinction as to whether the issue in one case only required the attendance of the witness. The costs and disbursements must be adjusted on these principles.
¶9No costs of the motion are allowed to either party.