¶1(all the Justices concurring.) — The plaintiff admits that the provision of the revised statutes, exonerating from costs persons who sue in a representative capacity, is abolished by the code, and contends that the only section of the code which gives costs against them is the 317th. He then argues that this section only gives them against the plaintiff, when the parties on both sides are in a representative character, as in a suit by an executor against a trustee, or the like.
¶2We do not so understand the code. , The language is disjunctive.; it applies to a suit either by or against an eoxcutor, &c., without regard to the character of the adverse party. As to actions by or against persons in their own right, whether their suits were against executors, or they were sued by executors, the previous sections had in like manner defined their liabilities, without reference to the character of their adverse parties.
¶3As to the witnesses’ fees. The cause stood No. 278, on the January trial term calendar, which was continued through February. This witness lived at Paterson, N. J., and could be procured on a day’s notice. The 31st January was the earliest day on which it was probable that the cause would be on the day calendar of the succeeding day.. It was on the day calendar, on Monday, February 2d, and continued there till the 6th, when it was set down for the 12th. It was then on the day calendar, and again, February 13th, when it was tried. The affidavit proved the attendance of the witness the whole twenty-nine days taxed.
¶4Where a witness resides at a distance from the city, we allow the party to send for him as soon as it is probable the cause will be on the day calendar, by the time, or within a day or two of the time when the witness will arrive in the city. We do not tax for his attendance longer than this rule, followed in good faith, will require his attendance. Causes are frequently on the general term calendar a month, without the day calendar *721once reaching them. It would be absurd for witnesses to attend the court under such circumstances.
¶5In this case, the defendant may tax for the witness’s attendance eight days, viz., January 31st, and February 2d, 3d, 4th, 5th, 6th, 12th, and 13th.
¶6Order accordingly.