"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." Rev. Code, ch. 35, sec. 37.
The act proceeds to define in what cases the defendant shall pay costs, and also in what cases the court may, in its discretion, order the prosecutor to pay costs.
But suppose the court should order an insolvent prosecutor to pay costs, can it be that the county would thereby be discharged from its primary liability to State's witnesses? Such cannot be the fair construction of either ch. 35, sec. 37, or of ch. 28, sec. 9 of the Revised Code.
If the prosecutor is not insolvent and is made to pay, well and good; otherwise, the county remains liable.
In all cases where the county is liable to pay costs, that county wherein the offense shall have been charged to be committed shall pay them. Rev. Code, ch. 28, sec. 10.
In the case at bar his Honor, Judge Tourgee, ordered the prosecutor to pay costs, and it now appears by the sheriff's (122) return upon an execution that the prosecutor is insolvent.
True, his Honor required of the prosecutor a bond to secure the costs, which was given, and while it may be good and made available as a bond at common law, yet as there was no authority in the court to require such a bond, we may dismiss it for the present from our consideration.
Our attention was called to Laws 1868-'69, ch. 178, sec. 40, but that only applies to the costs of officers in preliminary proceedings, which by said act are placed at the discretion of the judge before whom the case shall be tried.
But the defendants deny the power of his Honor, Judge Kerr, the successor of Judge Tourgee, to make an order upon the county of *Page 100 Guilford for the payment of these costs. If this objection be founded upon Laws 1868-'69, ch. 178, sec. 40, we have already seen it has no application to the case before us.
If it be based upon the broader ground that Judge Kerr could make no order in a cause which had been disposed of by Judge Tourgee, the reply is, the cause for the purpose of collecting costs is still pending, and the order of Judge Tourgee for that purpose, having proved abortive, it was already within the province of Judge Kerr, or whoever might be the judge of that district, to make orders in that as in all other causes pending at the close of Judge Tourgee's term.
The judgment of the Superior Court is
PER CURIAM. Affirmed.
Cited: Guilford v. Comrs., 120 N.C. 28.
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