10 Ala. 57 | Ala. | 1846
By the act of 1807, it is enacted that the attendance of a witness as to the number of days shall be ascertained by his oath, to be made at the court at which the cause is determined, &c. or within five days thereafter, before the clerk, who shall grant a certificate for the same ; and if the witness swear falsely, in order to obtain his certificate, he shall be adjudged guilty of perjury. [Clay’s Dig. 600, § 6; 601, § 12.] It is contended that a certificate obtained under this enactment is conclusive as to the number of days the witness has attended under subpoena, and cannot be gainsay-ed, either upon a motion to retax, or where a suit is brought for its recovery. This argument cannot be supported. A case decided at this term admits that the certificate is prima facie evidence of its correctness, but it is competent for the party at whose instance he was summoned to show the reverse. In principle, we can discover no difference between that case and the one now before us. It is the duty of courts to supervise the taxation of costs by their ministerial officers, and they are invested with ample powers for this purpose; which cannot be impaired by the fact that a witness has received a certificate from the clerk according to the provisions of the statute. True, the certificate of the witness upon a motion to retax, would be presumptive evidence of his attendance for the length of time expressed upon its face; but cannot be
It is made the duty of the clerk of the circuit or county court, in Avhich a suit is pending, “ where a witness had been ordered to be subpoenaed by any party, to continue thereafter to issue subpoenas for such witness from term to term, until the cause in which the evidence of such witness may be wanted, shall be finally tried, or the said witness discharged by the proper party, and the clerk notified thereof.” [Clay’s Dig. 602, <§> 15.] This statute makes it the duty of the clerk to issue a subpoena for a witness to each succeding term, where it has been once directed by a party, until the order is countermanded, or the suit disposed of; and the corresponding duty of attending until the witness has been released from the subpoena, would seem necessarily to follow.
We do not understand that the circuit court sets apart, in advance, a definite number of days to the criminal docket, but merely that it is announced from the bench when that docket will be taken up ; and until it is disposed of, no civil business will be called. Such announcement is not a license to witnesses in civil causes to withdraw their attendance for the residite of the term, or until some future day in the term. The mandate of the subpoena requires them to be present from day to day until they are discharged.
It is competent for a party causing a witness to be summoned, who resides so near the place where the court is hol-den that he may without inconvenience return home at the close of each day, or week, to relieve the witness from attendance for a certain number of days, or until some definite day during the term. Whether, if the witness comes from such a distance as would render it inconvenient or oppressive to go to his home and return to the court, he can be discharged for a period short of the term, we will not inquire.
Now, although the criminal docket may be taken up, it does not amount to the discharge of a witness in a civil cause for a single day. The witness cannot know how long it may occupy the court, or tvhether the civil docket may not be called before it is finally disposed of. ■ If litigants would
The consequence is, the judgment of the circuit court, by which the costs taxed to the appellant were reduced, is reversed, and the motion remanded if the appellee desires it.
