McRae v. . Guion ( 1859 )

On a previous decree for costs against the plaintiffs in the cause, thefieri facias issued, which is the subject of this rule and the material contents of which appear from the following exceptions filed:

1. Because the exhibits referred to specially in the bill of complaint, as a part thereof, should have been filed in the office of the clerk and master, and no copies of them should have been issued to the defendants.

2. That copies of the bill are not chargeable by the office copy-sheet, being nothing more than a writ or process to bring defendants into court.

3. That if the bills are chargeable by the copy-sheet, the exhibits filed in the cause form no part of the bill and should not have been issued with the bill and subpoena or be charged in the bill of costs.

4. The plaintiffs further excepted to the bill of costs for that (130) the clerk and master charged $1.25 for issuing the fi. fa. — 25 cents being for his official seal, though all the defendants in the execution resided in the county of Robeson.

5. That a copy of the original bill and exhibits had been served on Haywood W. Guion, one of the defendants, and afterwards, the bill being amended by making the Wilmington, Charlotte, and Rutherford Railroad Company a party defendant, the master issued another copy of the bill, as amended, with another copy of the exhibits to the same Haywood W. Guion, as president of the said company, charging the defendants in the execution again for bill and exhibits by the copy-sheet.

6. That the master charged for his seal upon each copy of the bill and subpoenas to each defendant, as well those in the county as those without.

It was admitted that the bill was allowed to be amended by making the corporation a party defendant and a copy with exhibits issued to the president.

The exceptions being overruled by the court, the plaintiffs appealed. The first and main exception to the bill of costs, for which the execution issued, is that the exhibits referred to in the bill and prayed to be made a part thereof ought to have been filed in the office of the clerk and master and not made a part of the copy of the bill, which the law requires to be served upon the defendant, or on each defendant if there be more than one. See Revised Code, chap. 32, sec. 3, Rule 2. It is true that exhibits are not properly any part of the bill, and ought not to be so made. They are only proofs in the cause, and ought only to be referred to and prayed to be filed as such. 1 Dan. Ch. Pr., 420. But if the plaintiff choose to make them a part of (131) his bill, as was done in the present case, and as we are sorry to see is too generally the practice, we do not perceive any ground upon which he can object to paying for copies of them whenever he may for any cause be ordered to pay the costs. This exception is, therefore, overruled, and with it the third exception is disposed of.

The second exception is that the clerk and master has no right to charge by the copy-sheet for copies of the bill which he issued to be served on the defendant or defendants. The counsel for the plaintiffs contend that the only fee to which the clerk and master is entitled under sec. 26, chap. 102, Rev. Code, is "for process, $1," but in this we think he is mistaken. The copies of the bill which are sent out to be served with a writ or subpoena have always been considered as "proceedings" for which, by the same section, the charge is 20 cents by the copy-sheet.

The fourth exception is sustained as to the charge for the seal to the writ of fieri facias issued to the sheriff of the county in which the clerk and master resided. Sec. 120, chap. 31, Rev. Code, expressly declares that "where the clerk of the Superior or county court issues precepts or process to the county of which he is clerk, he shall not annex the seal of the court thereto, and chap. 32, sec. 4, authorizes executions to be issued from a court of equity in the same manner as executions at law.

The fifth exception must be overruled, because, after the amendment of the bill, the service of the copy of it on the president of the railroad company was necessary for the purpose of making the corporation a party.

The sixth and last exception is overruled in part and sustained as to the residue of it. A seal is not necessary, as we have already said, to any process within the county, and there ought to have been but one subpoena more than the number of the defendants. All the subpoenas which are to be served on the defendants and left with them will be copies of the one which the officer retains, and upon which he is to make his return.

(132) The decretal order must be reversed in the particulars mentioned above and affirmed as to the residue. As the judgment has been in part reversed, the appellee must pay the costs of this Court.

PER CURIAM. Decretal order reversed in part.