Opinion
(December Term, 1801.)
The witnesses of the prevailing party could not, after the Act of 1783 (see New Rev., ch. 189, sec. 3) warrant for their attendance after judgment in the suit.
This cause came from New Bern Superior Court on the following case: The defendant and one Abraham Bush had a suit pending in the Superior Court of Law for the District of New Bern, in which the present defendant was plaintiff, and which was determined in the term of March, 1795. The defendant Hodges prevailed in that suit. The plaintiff Standley was summoned and attended as a witness for Hodges, and took out tickets for his attendance, but did not file them with the clerk. The present plaintiff, Standley, after the determination of the suit between Hodges and Bush, warranted the present defendant, Hodges, for his attendance, and the cause was removed by certiorari to this Court. The plaintiff was proceeding on the trial to give evidence to support his cause at common law, as for work and labor done, but was stopped and nonsuited by the Court, with the leave to save the following question for the opinion of the Judges, viz.:
Whether, prior to the Act of Assembly passed in the year 1796, ch. 12, a witness had a right to charge the party at whose instance he had been summoned and attended, for such attendance, as at common law, for work and labor done; or must for his remedy resort to the party cast, in the manner prescribed by the Act of Assembly, passed in 1783, ch. 12.
We are of opinion that the nonsuit was properly directed, and ought to stand — the plaintiff not having adopted (501) that mode of recovery sanctioned by law.
Cited: Carter v. Wood, 33 N.C. 24; Belden v. Snead, 84 N.C. 244.
NOTE. — See Moore v. Islar, ante, 81, and the cases referred to in the note. S. c., ante, 203.