Edgecombe County NcArchives Court.....William Whithed, State V. 1819
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File contributed for use in USGenWeb Archives by:
Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 January 14, 2009, 5:46 pm

Source: Nc Reports
Written: 1819

The State v. William Whithed

From Edgecombe

May Term 1819

Where the Defendant in an indictment is acquitted, or where a nolle prosequi 
is entered, he is bound to pay his own costs, and none other.

The indictment in this case was founded on the presentment of a Grand Jury. 
The Defendant was tried and acquitted, and a question was submitted to the 
Court whether he was liable for costs, and if so, what costs; and the same 
question was submitted in State v. James Dancy, where nolle prosequi was 
entered.

Henderson, Judge: The Defendant is bound to pay his own costs, for he incurs 
them by calling on those whose services he thinks he needs, and he must pay 
them for labor done at his request. And there is no person by whom he can be 
remunerated, the statute fixing the costs on the party cast not applying to 
the case, and it being a maxim in our law that no person recovers costs of the 
sovereignty. But we cannot perceive on what ground the Defendant should be 
subject to any other costs. There is no law, either statute or common, which 
makes him liable. It is true, we suppose that the Legislature, when they 
passed the act of 1800, supposed that the Defendant, although acquitted, was 
liable for all costs, except in cases where the prosecutor was ordered to pay 
them and by that act exempted him from the payment of the State's witnesses; 
but this is supposition upon supposition. It is admitted that judicial 
construction or legislative understanding ought not to be departed from 
lightly; but in this case the Court are at a loss to point out the act which 
was thus interpreted. They conjecture that it was the act of 1777, directing 
the Court in certain cases to make the prosecutor pay costs. From that it was 
probably thought that in all other cases the Defendant was bound to pay them. 
But this is mere conjecture, and is certainly too slight a ground to 
adjudicate on in a country governed by known laws. So far from there being any 
law to warrant it, every law on the subject with which we are acquainted is in 
opposition to it. We are, therefore, of opinion that the Defendant is bound to 
pay none other than his own costs.

Cited: S. v. Massey, 104 N.C. 879


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