Marshall County v. Tidmore , 74 Miss. 317 ( 1896 )

Whitfield, J.,

delivered the opinion of the court.

The court erred in allowing appellee the witness’ fees for the time he was confined in jail. The plain declaration of the law (see §§ 1987, 2023-2026, code 1892) is that only the fees prescribed by the statute shall be allowed. The attendance meant by the statute, clearly, is attendance upon the court when in session. Learned counsel for appellee cite two cases (Robinson v. Chambers, 94 Mich., 471, 54 N. W., 176; and Higginson’s case, 1 Cranch C. C., 73, Fed. Cas. No. 6471) which directly support his contention, and two others (Hutchins v. State, 8 Mo., 288, and State v. Stewart, 4 N. C., 524; 1 Car. Law Rep., 138) which in principle support it, but which, as they relate to mileage, are of no authority here, § 2023 providing that the only mileage allowed here is that for distance traveled within this state.

We cannot assent to the view announced in these cases. In the first two the witnesses were women, and whether gallantry towards the sex or the hardness of the cases, or both together, constrained the court, we think them unsound. The court expounds the law. It neither makes nor modifies it. Doubtless provision should be made by the legislature for cases like the extraordinary one at bar. But that is for the legislature alone. All the cases relied on by learned counsel for appellee, and others, are set out and properly discriminated in the note to Robinson v. Chambers, supra, in the twentieth volume of the Lawyers’ Reports Annotated, at page 57, a series absolutely invaluable to bench and bar.

The true view (the exactly opposite doctrine to that maintained by counsel for appellee) is announced in Markwell v. Warren Co., 53 Iowa, 422 (5 N. W., 570), where the witness was confined in jail, in exactly the same state of case as here, for ninety-five days. We concur in the result there announced. The court there said: “It cannot be claimed that defendant was in attendance upon the court while in jail. His confinement was to secure his attendance when court should convene. ’ ’ This certainly is sound, without reference to the other reason given by the court (as to which we say nothing), to the effect that he was confined, not because he could not give bond, but because the magistrate “must have found that the witness would not discharge the duty he owed to the state, of voluntarily appearing to testify. ’ ’ Our view is that the statute does not provide for the case, and we cannot allow what the statute does not warrant. The other fees allowed were proper. As to the fees for the one hundred and eighty days, the judgment is reversed, and judgment here accordingly will be entered. So ordered.