Opinion
(January Term, 1868.)
Where several defendants were included in the same indictment, which had been found during the late war and continued until after the courts were reopened; upon a motion to retax costs, Held:
1. That the State was entitled to but one tax.
2. That the clerk, at each continuance, was entitled to but one fee for continuance.
3. That as but one capias, including the names of all the defendants, had been issued, the clerk was entitled to but one fee for capias.
4. That the clerk was entitled to but one fee for the indictment.
5. That he was entitled to a separate fee for judgment against each defendant.
6. That he was not entitled to fees for subpoenas issued from term to term; but to only one fee for those originally issued and to another for those issued at the reopening of the courts.
MOTION, to retax costs, made at Spring Term, 1867, of the Superior Court of WILKES, before Gilliam, J., under an indictment for assault and battery, in which the defendants (eighteen in number) had submitted and received judgment at Fall Term, 1866.
Merrimon for clerk.
Clement, contra.
The objections were to the following items:
1. The clerk had charged each defendant with a separate tax to the State and separate fees for each continuance; for the indictment; the capias (there being but one, including all the names) and for judgment.
2. The bill having been found during the recent war, had been continued until the courts were closed in 1865, and was revived when they were reopened. The clerk issued subpoenas for witnesses from term to term, and the defendants were charged with clerk's and sheriff's fees accordingly.
His Honor held that the State was entitled to but one tax, and to but one fee for each continuance of the case, and to but one for the indictment and capias; but that the clerk was entitled to a separate fee (446) for judgment against each defendant. He also held that the defendants were chargeable only for the subpoenas originally issued, and for those issued at the reopening of the courts.
From the order directing a retaxation in conformity with the above opinion (except as regards the judgment) the clerk appealed; upon the other point the defendants appealed.
In all the rulings of the court to which the clerk below excepted and from which he appealed, we concur, and direct the order to be affirmed.
We also concur in the rulings that the clerk had a right to tax a fee for judgment against each defendant; for although the defendants were included in the same indictment, the judgment was a separate one against each, and not a joint one against all.
There was no necessity for but one subpoena or set of subpoenas for the witnesses prior to the time at which the court ceased to be held, because when once summoned the witnesses were bound to attend from term to term until discharged, according to the express provision to that effect in the Code, ch. 31, sec. 60. After the court was reopened it was proper for the clerk to issue another subpoena or set of subpoenas to summon the witnesses against. He had a right, therefore, to charge for two subpoenas or sets of subpoenas for the witnesses, and no more. We therefore concur also in the rulings of his Honor upon this point.
The opinion and orders of this Court must be certified to the court below, to the end that the costs may be retaxed in accordance therewith.
The clerk must pay the costs of the appeal.
PER CURIAM. Order accordingly. (447)