Opinion op the Court. — The defendant objects to the costs taxed against him upon the subpoenas, and the service thereof upon witnesses in the case, upon the ground that the subpoenas are void on their face, being directed to the marshal instead of to the witnesses themselves.
' By the act of Congress of May 19, 1828, (4 Stat. 278), to regulate the processes in the courts of the United States, and made applicable to Arkansas by the act of August 1, 1842, (5 Stat. 499), it is enacted in substance, that the forms of mesne and final process, except the style, shall be the same in the courts of the United States, as in the highest State courts of original and general jurisdiction; subject, however, to such alterations and additions, from time to time, as the courts of the United States shall, in their discretion, deem expedient.
The forms of subpoenas, as well as every other process, then, must conform to those used in the circuit courts of this State, unless this court has deemed it expedient, under the power vested in it by congress, to alter the same.
A subpoena for a witness, by the laws of this State, is to be directed to the, person to be summoned, and not to an officer commanding him to summon the witness. Rev. Stat. 774.
The subpoenas which have issued from this court, since its first organization, have uniformly been directed to the marshal of the district, and not to the witnesses themselves. Although this form of subpoena has not been prescribed by an express rule of this court, yet it has received its sanction ever since its creation, and the legality of this form has never been called in question until the present time. The power of this court to adopt the form of a subpoena cannot be disputed, for it is *548expressly conferred by act of congress. The question then is, Has this court adopted this form ? Uniform practice in the use of this form, from the origin of the court to the present time, would seem to be sufficient to establish the fact that the present form of the subpoena had been adopted. Uniform practice, acquiesced in by the bar, and never contested by any one, for a period of ten years, as firmly establishes that practice and makes it the act of the court, as if it had been prescribed by the written rules of the court. The subpoenas were not void.
But the variance between the subpoena provided by the State law, and that used in this court, is in form only. They are substantially the same. In each of them the witness is commanded to appear at court and testify, and each may be served by an officer of the court or by a private person, the latter making oath to the service. They are, in fact, precisely the same, except in form. But even if they were substantially different, it is clear that the court has the power to alter the form of the writ; and the court in effect has exercised that power in the manner alluded to.
The defendant objects to the item in the taxation of costs against him for the subpoena and its service on William F. Moore, a witness who resided more than one hundred miles from this place, and whose deposition the plaintiff' had taken before the service of the subpoena on him. This objection is well taken. The deposition of a witness residing more than one hundred miles from the place of trial, is to be taken, not de bene esse, but in chief, and he cannot charge the defendant ■with the costs of taking his deposition, and also the costs of summoning him as a witness. Having used the deposition, he cannot charge the defendant with having him summoned to appear and give evidence orally in court. This item is disallowed.
He also objects to the costs incident to suing out two commissions for the purpose of taking Moore’s deposition. This objection is also well founded. I can perceive no necessity for more than one commission. These costs are disallowed.
He also objects to all the costs incident to the taking the rejected deposition, of Moore, including the fees of the clerk *549of this court. I deem this objection well taken, and these costs are disallowed as against the defendant.
The certificate of the justice of the peace of the costs of taking depositions béfore him, is to be regarded so far only as it states legal items of costs incurred before him. All beyond that is disallowed.
Let the costs be retaxed in accordance with this opinion.
Ordered accordingly.
The plaintiff having moved for a reconsideration, the following opinion was delivered: — ■
— Upon reconsidering the opinion previously given in this case, I am satisfied I erred in stating “that the deposition of a witness, residing more than one hundred miles from the place of trial, is taken, not de bene esse, but in chief.” In a suit at common law, the deposition of a witness so residing, is taken de bene esse, or .conditionally; the only condition, however, being, that the witness shall remove to a place less than one hundred miles to the place of trial, before the deposition is offered to be.read ; and, unless this shall be shown by the party objecting, the deposition may be read at the trial, without the service of a subpoena upon the witness.1
. Indeed, a witness residing more than one hundred miles from the place of trial, is beyond the coercive power of a subpoena. The party may take his deposition, but cannot compel him to attend at court, and give oral testimony. This had been expressly held by the supreme court of the United States, in the case of The Potapsco Insurance Company v. Southgate, 5 Peters, Rep. 615.
The party desiring his testimony has no right to issue a subpoena to coerce his attendance, and if he does he must pay the costs incident thereto, and not throw them upon the other party. One other principle stated in the former opinion requires explanation. It relates to the costs of taking depositions.
It is the duty of the person before whom depositions are taken, to state and certify each item of costs before him, that *550the court may see that the charges are such as the law allows, and that the services have been performed.
In this case, the justice before whom the depositions were taken has not sent up a statement of the items of costs before him, but has certified them as follows: —“ Justice’s fees, $3.17; constable’s, $2.18; witnesses’, $2.50.”
This certificate is inadmissible to prove the amount of costs incurred before him.
He should have stated the items of costs, and transmitted the evidence of the services rendered, that this court might see that the charges were legal, and such as the law allows.
This certificate, however, is evidence that he claimed the fees allowed him by law.
It is proper, then, to look at the services rendered by the justice to ascertain the amount of fees to which he was entitled; and in doing so, it appears he was entitled to the sum of $3.17 for taking the five depositions. Rev. Stat. 395.
It is contended that the fees to the constable of $2.18, and to the witnesses of fifty cents each, ought to be allowed. There is no proof that the constable rendered any service; nor is there any proof that the witnesses were summoned to testify before the justice, and that they claimed to be paid therefor-, except the statement of the justice, of $2.18 as constable’s fees, and. $2.50 as witnesses’ fees. This is not sufficient. He should have certified the items of the services performed by the constable, and that the witnesses were summoned before him to testify, and that they claimed to be paid for their attendance.
Governed by the principles stated in this opinion, and looking into the taxation of the costs, I find that the defendant has been illegally taxed with costs, to the amount of eighteen dollars and forty-six cents, which he has paid upon the execution against him. The plaintiff must refund and pay to the defendant that sum, together with the costs of the motion for a retaxation. Ordered accordingly1