17 Ga. 211 | Ga. | 1855
By the Court.
delivering the opinion.
The Court below decided, that the levy of a certified subpoena-account on land, is a matter which cannot be reached by affidavit of illegality. This decision is the first assigned as erroneous.
A part of the thirty-second section of the Judiciary Act of 1799, is as follows: “In all cases where execution shall issue
The word “ issue,” in this section, has always, to the best of the knowledge and information of this- Court, been considered and treated as having the sense of the word- proceed. That is? , the sense which the word is assumed to- have by the rule of' Court which has reference to the affidavit of illegality, for the only ease which that rule provides for, is a case in- which the-illegality consists, not in the execution’s having issued illegally, but in its proceeding illegally, though it was issued legally. It is the case in which, notwithstanding that a payment has been made on the execution, the execution is proceeding, as if no payment had been made on it. The rule is in these words: “ When an affidavit of illegality is made, on account of partial payment made on the execution, the defendant, at- the time of making such affidavit, must pay up the amount he admits to be due, or the Sheriff shall proceed to raise the amount, and accept the affidavit for the balance.”
The reason why the word, to “issue” has been thus treated as having the sense of the word to proceed, is, perhaps, twofold-first, the word was probably used in that sense in the Acts from which it was, by the Judiciary Act of 1799, adopted, viz: the Judiciary Acts of 1792, 1796? 1797. Secondly, the Statute using the word is a remedial one, and was intended, in all likelihood, to furnish a substitute for the remedy by audita querala — a remedy that lies for a man in execution, or in danger of it, when he has matter, in fact or in writing, to avoid such execution, and no other means to take advantage of it; that is, a remedy as much for matters arising after the issuing of the execution, as for matters arising after the judgment, but before the issuing of the execution. (Wat. Dig. 485, 616, 631.)
Taken, then, in the sense of that word, the decision of the Court below was wrong; for the Statute which turns a certified subpoena-account into an execution, the Judiciary Statute of 1799 authorizes such an execution to be levied of “goods and ■chattels” only, and the certified subpoena-account, in this case, was proceeding to be levied of land.
The witness, therefore, in this case, was not justified in charging for attendance rendered after the announcement made by the Court, that the cases in which he was summoned would not be tried; and so we think the Court below should have told the Jury.
Is a witness, attending under subpoenas in different cases, at the instance of the same person, he a party in all of those cases, entitled to charge full fees in each case ? The Court below told the Jury that a witness is. And we think, told ■them properly.
“ Taxed in the bill of costs,” must mean taxed in the bill of' costs of the case in which the witness may have been subpoened. In every case there is a bill of costs. If, therefore, there are more cases in which the witness has been subpoened than one, there will be more bills of costs in which hisy?er diem is to be taxed than one.
The party, then, that summons a witness in more cases than one, has the right, if he gains the cases, to tax his adversary with full fees for the witness, in each case. But if he has the right to tax his adversary with full fees in each case, it must be because he, himself, was under obligation, in the first instance, to pay the witness full fees in each case; that is to say, it must be because the witness, in such a state of things, is entitled to fie paid full fees in each case.
And if in such a state of things the witness is entitled to be .paid full fees in each case; that is to say, in a- state of things in which the party calling him has the. right to tax ■his adversary with the fees, then the witness is entitled to be paid them in each case in any and every state of things: -for there-is no law from which it can be presumed that the Legislature intended that the amount of compensation to a witness, was ever tobegreater, if the party calling the witness should gain the case,, and so acquire the right to tax his adversary with such compensation, than it was to be if that party should lose his case. On the contrary, there is law from which it is to be inferred, that the Legislature intended the fees of a witness to be the same, whether the party calling him should gain his case or should lose, it. The Act of 1792, gives the witness the right to-make out his account for attendance, on the last day of his attendance in each .term. And it may, and frequently.does hap
The correctness of this conclusion, drawn from the words of Statutes, is confirmed by what has, as far as we know, been the uniform practice of all the Courts — a practice, perhaps as old as those' Courts. Those Courts have always, we believe, allowed witnesses to charge full fees for each subpoena.
And yet, when the result to which the law, if this conclusion be correct, may, as exemplified in this case, lead, is considered, it is very diffcult to think that the Legislature ever intended such to be the conclusion. In this case, the witness is summoned by the same party, in nine cases. He attends forty-six days, and for such attendance he charges, for each case, one dollar and a half a day — thirteen dollars and a half a day in all the cases. To allow such a charge, is to say that witnesses, in some cases — and those cases in which the witnesses are put to no unusual trouble or loss, shall be paid at a higher rate than the Governor of the State or members of Congress. Did the Legislature intend to say what would lead to this ? Hardly. Still, this results from what they have said and what they have left unsaid. They have said nothing to authorize any other rule than this.
If the Legislature had said, that in such case as this, or in cases in which the same person may be summoned by different parties, the witness should be entitled to have, for attendance in all the cases, no more than a named sum per day, to be collected at his option, out of any of the parties calling him, if called by more than one, provided the time for which he attended for that party, was as much as the whole time of his attendance ; and if not as much, then to be collected, in part, out of him, and as to the rest, out of another or others of those calling him — and' had further said, that the- party or parties out of whom he might so collect his pay, should have the right
On this point, therefore, we think the Court below was right.