Ex parte Haley v. Supervisors of Ulster

12 Wend. 237

• Court: New York Supreme Court
• Decided: November 20, 1834
• Status: Published

Opinion

By the Court,

Sutherland, J.

The principle upon which the relator insisted before the supervisors, and now here, is undoubtedly the general principle upon which fees are charged in analogous cases. Where a capias is issued against several individuals, it is believed to be the universal practice for the sheriff to charge full mileage from the court house to the residence of each defendant, and the propriety of the charge, so far as I am informed, has never been questioned. The provision, that mileage shall be allowed only on the distance actually and necessarily travelled, 2 R. S. 750, § 4, was not intended, I apprehend, to apply to a case like this. If the subpoena is to be considered a separate writ for each witness named in it, then the distance travelled to each must be determined without any reference to the others. It is in the power of the district attorney to issue a subpoena for each witness, and he may include several in the same writ; upon the principle contended for by the supervisors, the district attorney therefore may, at his pleasure, enlarge or restrict'the compensation of the constable, in cases where the services actually performed by him are precisely the same. The right of constables ought to be more certain and fixed. The limitation in the act may well be satisfied, by allowing the constable to charge for travel only by the nearest and most direct road to each witness. I think the act will admit of this construction; and the compensation which it will give to these officers for this branch of their services, is by no means unreasonable or extravagant.

The principle which I have stated, will enable the parties to dispose of this case according to their stipulation-or agreement.