80 N.C. 116 | N.C. | 1879
The facts sufficiently appear in the opinion. The plaintiff as assignee and owner for value of two witness tickets amounting to $17.40 brought suit against the defendants in a justice's court and from the judgment against them they appealed to the superior court and thence to this court.
It appears from the facts found by the judge below that the two witnesses to whom were issued the tickets sued upon, attended under summons at fall term, 1878, of Buncombe superior court as witnesses for the state on an indictment against James R. Deaver for murder, who was tried and acquitted at that term; and the fact is also found that the judge (Avery) who tried the case made an order in the cause that the county of Buncombe pay the costs of the officers of the court and the charges of the state's witnesses.
The defendants insist that no duty arose to them to pay *117 the said tickets, because the judge should have passed on the right of the witnesses to prove in the suit, for how long, whether for whole or half fees, whether they had attended under subpoena for the number of days proved for, and that the order of the judge should have included the names of all witnesses who should be permitted to prove against the state.
The statute makes the tickets issued to the witnesses presumptive evidence of the facts set forth therein, that is to say, of their attendance, for whom, how long, for how much, and the miles travelled. Bat. Rev., ch. 105, § 33. And the judge having at the conclusion of the trial made an order that the county of Buncombe pay the charges of the state's witnesses, all was done that ought to be required of him, or that was needed to enable the defendants to protect the county. The defendants, although in a strict sense not parties to the action, were interested and may be regarded as quasi parties in respect of their probable liability to pay the costs, and by having reference to the record of the cause, of easy access to them, they could easily find out the names of those holding tickets and therefore embraced in the judge's order. Thus it was convenient to them to exercise their duty to pay the tickets upon the presumed truth of the facts set forth therein, or if any valid objection existed thereto, then to avail of such objection by a proper proceeding — perhaps by a motion to retax the costs.
It is the opinion of the court that the tickets issued and now in suit made presumptive evidence of the facts in them recited, together with the order of the judge, made it the duty of the defendants to provide for their payment, and that upon the facts found by His Honor the judgment pronounced was authorized in law.
No error. Affirmed. *118