Opinion · Supreme Court of North Carolina
Harriss v. . Lee
46 N.C. 225
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1853-12-05
- Topic
- general
Battle, J. The plaintiffs in this motion base their application to the Court tipon the 84th section of the 31st chapter of Revised Statutes, which enacts as follows: “ When *227 -several persons are made defendants to any action of tres.pass, assault and battery, false imprisonment, or ejectment, and any one or -more of them shall upon the trial thereof be acquitted by verdict, every person or persons s© .acquitted shall have and recover his costs of suit in like manner, as if a verdict had been given against the plaintiff or plaintiffs, and acquitted all the defendants; unless the Judge, before whom such cause shall be tried, shall, immediately •after the trial thereof, in open. Court, ’certify upon the record, under his hand, that there was a reasonable cause for making such person or persons, defendant or defendants to such action or plaint.” By the express terms’-of this enactment, the applicants were entitled to have the attendance ■of their witnesses taxed as costs against the plaintiff in the action, upon the failure of the Judge to certify, that they were properly made defendants, if the costs of the attendance of such witnesses, or any part of it, were paid for -by them, or were a proper charge against them.. Why was it -not ? The witnesses were summoned by all the defendants by a joint subptena, and if they attended, they had a right ■to demand pay for such attendance, and (as this motion comes up) we are to take it that they were paid by all, each paying his propor…
Citator
UpLaw has not yet analyzed Harriss v. . Lee. The absence of a flag is not a finding that it is good law.
- Cited by
- 1 opinion
The objection that such witnesses did not attend, comes too late as answer to this motion.
Nor does it make a difference that the pleas of the defendants' were joint in form.
VENABLE v. MARTIN, Car. Law Rep. 515; WEAVER v. CRYER, 1 Dev. 337;
STATE v. SMITH, 2 Ired. 402; SATTERWHITE v, CARSON. 3 Ired 549, cited.
At the foot of the verdict was this entry, "judgment accordingly." It also appeared that the pleadings in behalf of the defendants were joint, and that certain witnesses were summoned in behalf of the defendants, by a joint subpoena, but no evidence was offered to show that they were sworn or tendered, or were in attendance. After the verdict at the present term, it appeared that the defendants acquitted gave notice through their counsel, that a motion would be made next day for a taxation of the costs in their favor, which motion however was not made.
At this term, a motion was made to have the witnesses, summoned for them, taxed by the clerk, and that an execution issue in their behalf against the plaintiff for the same. This the Court refused to do, and the applicants appealed.
The remaining objection, that it did not appear that the witnesses were sworn, or tendered, or even were in attendance, comes too late. The plaintiff on the action ought to have been active in the matter himself, by moving, at the trial term, to have the tickets of such witnesses rejected in the taxation of the costs against him. VENABLE v. MARTIN, 1 Car. Law Rep. 515.
The order from which the appeal was taken must be reversed, as being erroneous in part, which must be certified to the Superior Court of Nash County, to the end that Court may direct half the costs of the witnesses in question to be taxed against the plaintiff in the action and execution to issue therefor, and the plaintiff must pay the costs of this Court. SATTERWHITE v. CARSON, 3d Ired. Rep. 549.
Judgment reversed.