| N.C. | May 8, 1918
after stating the case: We have held heretofore that at common law no costs were recoverable by the plaintiff or defendant in civil actions or criminal prosecutions. Costs are now given by statute both in England and in this country, but they are recoverable by law only in those cases, State and civil, where they are allowed, and only in the manner and to the extent allowed by law. A witness who attends court without having been summoned is not entitled to prove his attendance so as to charge the losing party with the amount of his tickets. Stern v. Herren, 101 N. C., 518; Thompson v. Hodges, 10 N.C., 318" court="N.C." date_filed="1824-12-05" href="https://app.midpage.ai/document/thompson-v-hodges-3643258?utm_source=webapp" opinion_id="3643258">10 N. C., 318; Lewis v. Comrs., 74 N.C., 194" court="N.C." date_filed="1876-01-05" href="https://app.midpage.ai/document/lewis-v--commissioners-of-wake-3668486?utm_source=webapp" opinion_id="3668486">74 N. C., 194; S. v. Massey, 104 N.C., 877" court="N.C." date_filed="1889-09-05" href="https://app.midpage.ai/document/state-v--massey-3678592?utm_source=webapp" opinion_id="3678592">104 N. C., 877; Clerk v. Comrs., 121 N.C., 29" court="N.C." date_filed="1897-09-05" href="https://app.midpage.ai/document/clerks-office-v-commissioners-of-carteret-county-3671987?utm_source=webapp" opinion_id="3671987">121 N. C., 29; Patterson v. Ramsey, 136 N.C., 561" court="N.C." date_filed="1904-11-22" href="https://app.midpage.ai/document/patterson-v-ramsey-3666404?utm_source=webapp" opinion_id="3666404">136 N. C., 561.
In the Stern case this Court, by Justice Davis, said: “The attendance of a nonresident witness cannot be enforced, even though summoned ; and as was said by Daniel, J., in Kinzey v. King, 28 N.C., 76" court="N.C." date_filed="1845-12-05" href="https://app.midpage.ai/document/kinzey-v--king-3673543?utm_source=webapp" opinion_id="3673543">28 N. C., 76, the party desiring his evidence may have his deposition taken. To the
The rule applied both to civil and criminal cases, and in S. v. Massey, supra, it was said that “the duty of one attending court in obedience to a subpoena is incident to citizenship, as in feudal times the duty of ‘attending the Lord’s Court’ was incident to fealty. Payment of witnesses by the sovereign is neither given by common law, nor is it an inherent right.” Costs are allowed and paid now, as for many years they have been, only as provided by statute, which is, so far as pertinent to this case, in the following sections of the Revisal of 1905:
“Section 1283. If there be no prosecutor in a criminal action, and the defendant shall be acquitted, . . . the county shall pay the clerks, sheriffs, constables, justices, and witnesses one-half their lawful fees only, except in capital felonies and in prosecutions for forgery, perjury, and conspiracy, when they shall receive full fees. . . . And no county shall pay any such costs unless the same shall have been approved, audited, and adjudged against the ■ county as provided in this chapter.”
“Section 1296. All witnesses summoned or recognized in behalf of the State shall be allowed the same pay for their daily attendance, ferriage, and mileage as is allowed- to witnesses attending in civil suits.”
“Section 1303. No person shall receive pay as a witness for the State on the trial of any criminal action unless such person shall have been summoned by the clerk under the direction of the solicitor prosecuting in the court in which the action originated, or in which it shall be tried if removed.”
“Section 1289. Witnesses summoned or recognized on behalf of the State to attend on any criminal prosecution in the Superior or criminal courts where the defendant is insolvent, or by law shall not be bound to pay the same, and the court does not order them to be paid by the county in which the prosecution was commenced. And in all cases wherein witnesses may be summoned or recognized to attend any such court to give evidence in behalf of the State, and the defendant shall be discharged, and in cases where the defendant shall break jail*824 and shall not afterwards be retaken, the court shall order the witnesses to be paid.”
It will appear from this resumé of our law upon the subject of costs that the power of the court to tax costs in favor of witnesses is confined to those who have been summoned or recognized to appear. It may be wise for the Legislature to enlarge this power so as to embrace a case of this kind and rely upon the solicitors and the general supervision of the judge to protect the interests of the State against any abuse of the same, but we are not concerned with what shall be the policy of the State, and must apply the law as it is written, the jus dicere being all that belongs to us, and the jus dare being the function and prerogative of the legislative department.
In this ease, under a proper construction of the statute, the judge has allowed the nonresident witness fully as much as they were entitled to receive, if not more, but whether more we need not say. It appears that they were neither summoned nor recognized, and therefore do not come sufficiently within the designation of witnesses entitled to prove their attendance and mileage, so as to recover costs for any service rendered by them outside the State. They have been allowed costs for their attendance and for mileage from Concord to the State line by the ordinary route of travel, and the judge correctly ruled that he had no power to allow any more. These witnesses were not legally summoned. We do not know of any provision of the law which authorized service of a subpoena on a witness beyond the State. There is a statute in regard to service of a summons, notice, or other process personally, in lieu of publication, outside the State in civil cases (Revisal, sec. 448), but it has no application to the service of a subpoena in a criminal action.
There having been no legal service of subpoenas on the witnesses, the motion was properly denied, as it is said in Thompson v. Hodges, 10 N. C., 318, which has been followed in other cases, that “if he (the applicant for an allowance) had attended the court as a witness without having been summoned, his tickets must be expunged.”
A statute of another State with identical language has received, in Herrington v. Flanders, 115 G., 823, the same judicial construction which we have placed upon ours. In the syllabus written by the Court, in that case by Justice Fish (now Chief Justice), the Court held as follows: “It is unlawful, under Penal Code, see. 1079, to charge the accused in a criminal case, upon his conviction, with The costs of any witness of the State unless such witness was subpoenaed, sworn, and examined on the trial.’ The prohibition in that section against charging the accused, except as therein indicated, with the costs of ‘more than two witnesses to the same point’ relates, of course, only to wit
We conclude tbat there was no error in overruling tbe motion of tbe State.
No error.