By the Court.

delivering the opinion.

Under the Judiciary Act of 1799, the witness is entitled to prove his attendance and collect his cost out of the party at whose instance he is subpoenaed. True it maybe taxed in *347the bill of cost, and collected out of the party cast; but here this could not be done; because the witness was rejected for incompetency. And in a case made, the Court has decided that the defendant was.not .liable. Of course, the cost must be paid by the party at whose instance the witness was subpoenaed. It may be, and perhaps is, a hard case. We see no help for it.

Judgment affirmed.