Biggerstaff v. Cox

• Decision Date: 31 August 1854
• Citation: 46 N.C. 536,1 Jones 536
• Court: North Carolina Supreme Court
• Parties: JAMES N. BIGGERSTAFF v. DAVID N. COX.

1 Jones (NC) 536

46 N.C. 536

JAMES N. BIGGERSTAFF

v.DAVID N. COX.

Supreme Court of North Carolina.

August Term, 1854.

There is no provision in the laws of this State for taxing, as the costs of suit, services rendered by a sheriff, under a writ of capias ad testificandum, in carrying a witness to Court beyond the fee for the execution and return of the writ.

THIS was another question of cost arising in the case preceding this, (46 N.C. 534,) tried at Spring Term, 1854, of McDowell Superior Court, before his Honor Judge DICK.

The following additional facts appear from the record in the case, which will show the question now presented to the Court.

Two of the witnesses summoned for the plaintiff, refusing to obey the process of subpoena, on affidavits laid before his Honor, a capias ad testificandum was issued to the county of Cherokee, under which these witnesses were taken into custody and brought to the Court in McDowell. An item for this service was inserted in the bill of cost, taxed against the defendant, and this was a motion to strike out this item from the bill, which motion was allowed by the Court, and the charge ordered to be stricken out.

From this judgment the plaintiff appealed to this Court.

J. Baxter, for the plaintiff .

Gaither and T. R. Caldwell, for the defendant .

NASH, C. J.

It is the order and rule of this Court, that, when both parties appeal from different orders or judgments in the same case, each appeal shall be separately docketed, in order to avoid conflicting judgments on the same record. On the trial of this case, two orders or judgments were pronounced by the Court, from both of which there were appeals. The first was considered in the preceding case, and the other is now to be reviewed.

On the motion of the plaintiff, properly supported by affidavits, the Court had ordered a capias ad testificandum to issue to the sheriff of Cherokee county, against Tubal Huskins and Hannah Huskins, two recusant witnesses. The precept was served, and the witnesses conveyed by the sheriff to McDowell Superior Court, where the case was pending. The sheriff claimed the expenses he had incurred in carrying them to McDowell; the clerk, in taxing the costs, included these expenses, at the rate provided by the act of Assembly for carrying criminals to jail. The plaintiff was laid under a rule to show cause why this charge should not be stricken out of the bill of costs, which being made absolute, the plaintiff appealed to ...