Opinion
(January Term, 1814.)
A person who removes to another State after being recognized or summoned on the part of the State is entitled to mileage from the place of his actual residence.
THIS indictment was found at October Term, 1813, at which time one Jacob Jackson was bound in this Court in a recognizance in £ 50 to appear at this term as a witness in behalf of the State in this case. The said Jackson then resided in Guilford County, at the distance of 12 miles from the courthouse, but had prepared to remove, and shortly thereafter did remove himself and family to the State of Tennessee, where he now resides, at the distance of 300 miles from Guilford Courthouse. Along the road usually and by the said Jackson actually traveled from his place of residence to the said courthouse the distance within this State is 100 miles. At this term the said cause came on to be tried, and the said Jackson, as he was bound, attended as a witness in it in behalf of the State, when the said defendant, R. Stewart, submitted and was fined 10 shillings. The said Jackson applied for a witness ticket, in which he charged mileage for the whole distance between Guilford Courthouse and his present place of residence.
Our acts of Assembly in allowing witnesses pay for attending on behalf of the State are remedial, and ought to receive a liberal construction. By the act of 1777, ch. 2, sec. 43, witnesses were compelled to attend the courts, when summoned on criminal (139) prosecutions, until discharged, under a heavy penalty, and that without any compensation. In 1779 the first provision was made for the payment of State witnesses. In 1783 mileage was first allowed to witnesses attending in civil suits, which by the act of 1800, ch. 17, was extended to witnesses summoned or recognized to appear on behalf of the State in the Superior Courts. The words of the act of 1783 allowing mileage to witnesses are very broad, and, we think, sufficiently so to embrace the case of the witness under consideration. The allowance is, "for every 30 miles travel going to and returning from the said court, the sum of," etc.
There can be no question but these words would entitle the witness to mileage from the place of his residence if, after he had been summoned or recognized, he had removed to any other place within the State, however great the increased distance might have been. If the reason of this is sought for, it will be found to be in the obligation which attaches upon the witness, upon the service of process, or the entering into recognizance, and which removing from one place of residence to another, cannot discharge him from. And the obligation will remain the same whether he moves from one part of the State to another place within the same State, or to another State — in either case, he being once bound to attend, he will incur the penalty of the law if he fails to do so.
The serving a writ or summons or binding a man in recognizance to attend on a court to give testimony lays him under no obligation not to change his place of residence, nor will his doing so weaken his claim for compensation.
We are, therefore, all of opinion that the witness in this case is entitled to mileage to and from the place of his residence, in the State of Tennessee.
Dist.: Stern v. Herren, 101 N.C. 519; S. v. Means, 175 N.C. 823.
(140)