The opinion of the Court was delivered by

The plaintiff below, who was defendant here, attempted to make out that Elias Utt had caused a suit to be brought in the name of William Hackett, in which suit there was a verdict and judgment for the defendant. Abraham Long had been under subpoena to attend and had attended as a witness for the plaintiff in that cause, and for his mileage and daily pay as such witness this suit was brought before a justice of the peace, and by appeal from his decision the case came into the Common Pleas, The plaintiff called William Hackett, who was objected to as incompetent, admitted and exception. He testified that he was appointed.the committee of Adam Utt, as he understood, for the sole purpose of instituting that suit; that he never gave bond or took upon himself the duties of trustee; that he did not know that he ever agreed to accept the trust; that Mr Brooke (a lawyer now deceased) called on him and told him the appointment had been made by the court and for the object of bringing that suit; that Elias Utt was a son of the lunatic, and that he knew of no person carrying on that suit but Elias Utt and his son Adam. Bi-Sing ci’oss-examined, he said he did go to Luzerne county to take a deposition, but this was done' as the student of Mr Porter and not as trustee. He ought not to have been a witness. The suit, by his own statement, was brought in his name with his knowledge and consent. He was, therefore, prima, facie liable for costs; and whether he could be indemnified out of the estate of the lunatic would depend on whether the suit was brought on good probable grounds and advice of counsel: but he was primarily liable, and he could not be a witness to clear himself of this liability.

By the Act of23d April 1829, sect. 2, it is provided, that “the *178equitable plaintiff or person for whose use or benefit and at whose instance any action has been or may be prosecuted, whether named on the record or not, shall be liable to execution on judgment (for costs) against the legal plaintiff or plaintiffs: Provided, that where such equitable plaintiff or plaintiffs were not named on the record previous to judgment, his name shall be suggested on the record, supported by affidavit of his interest in the cause, before execution shall issue.” And I, for one, would be willing to give this Act a liberal construction,' and extend it to cases where any person had procured a suit to be instituted, and carried it on, and there was no other person from whom costs could be recovered. Independent of this Act of Assembly, the point is decided in 1 Peters’s C. C. R. 233, and in a manuscript note in 1 Whart. Dig. 272.

Adam Utt, the lunatic, is dead, and his representative was called to prove that Elias Utt had presented to him a bill of costs for witnesses’ and counsel fees expended in carrying on that suit: he was objected to and admitted. There was no error in this. It appeared that the estate of the lunatic was amply sufficient, and his representative was a stranger to this suit between these parties.

The court was asked to instruct the jury that as Elias Utt was not a party to the suit on the record, the fact of his taking an active part in carrying on the suit would not make him liable to the witnesses for their fees, without an express promise to pay them. To which,the court said; “merely taking an active part in carrying on the suit would not make him liable without an express promise to pay. But if you believe the defendant was the active agent in having the suit brought; that it was projected and instituted by him in the name of the committee, he would be liable to the witnesses for the plaintiff for their mileage and daily pay, without an express promise to pay.” It is objected that this answer goes beyond the point: but it does not go beyond the case and the facts there in evidence. In answering a point put so as to meet the view of the party making it, or so as to meet only part of the facts in evidence, it is not error, but the duty of the court to frame their answer so as to be applicable to the case trying and the evidence given. There was evidence from which the jury might have fairly found that Elias Utt, and he only, caused the suit to be brought and carried it on.

The 2d point and answer were' not objected to. The 3d point and answer are the same as the 1st point and answer, in substance, and no error in the answer. The 4th point, that “ a witness cannot maintain a suit against a party for his fees, without having the bill taxed and a demand made before suit brought.” This the court denied. The party in making this point did not advert to the difference between a bill of costs recovered by the successful party against the losing party, which must be submitted to the prothonotary and taxed by him, and the case before the court, which was that of a witness claiming his pay from the *179party who subpoenaed him and who lost the cause. There is no taxation of such a bill. The witness may demand it every term, nay, every day. I would advise that this case be settled without more contest; the costs of every day at court are more than the sum demanded; but it must be reversed on the 1st bill of exceptions.

Judgment reversed, and a venire de novo awarded.