State for Use of Treasurer v. Ogle

*505 The Court,

charged the jury: That the courts of the State referred to, were distinct tribunals. The former, the Court of Oyer and Terminer, had no general terms, and was specially called only when there was an occasion for it in any of the Counties. The latter, the Court of General Sessions of the Peace and Jail Delivery, and the Superior Court, had regular and general terms which commenced and concluded at the same time, and were composed of the same judges and petit, or general jurors. The charge of the defendant, as Sheriff, for summoning a grand jury to attend the Court of Oyer and Terminer, and to attend the Court of General Sessions of the Peace and Jail Delivery, was therefore a proper charge to be allowed by the Levy Court, as for a separate and distinct service, in summoning a grand jury 1;o attend each of said courts. But for summoning petit jurors to attend the Superior Court and the Court of General Sessions of the Peace and Jail Delivery, he could only charge and be allowed for one service in summoning at one and the same time, such jurors to attend at one and the same time the two latter courts. He should be allowed, however, his proper fees and charges in addition to those before alluded to, for summoning the additional and special petit jurors, necessary to complete the whole panel required to attend the Court of Oyer and Terminer alone, but neither of the other courts; but not as a separate, distinct or additional service for summoning the other petit jurors to attend that court and also the other two courts during the same time.

As to the charge of the defendant for the custody and maintenance of common vagrants in the common jail of the county, it was the opinion of the court, that although there was at that time no positive law to sanction the practice or warrant the charge of the Sheriff in that respect, yet, as such had been the established custom in the time of his predecessors in the office which had been for a long period acquiesced in and assented to by the Levy Court, and it had before sanctioned and allowed *506 such charges presented by him, it implied an approval of the practice and the custom by that body, which in law, equity and justice, bound it to allow his reasonable and proper charges therefor, until he was duly notified that no such charges would be sanctioned or allowed thereafter. When, however, such persons were admitted into the prison without an actual commitment by a public officer, he could in no such case be allowed a fee, or any charge whatever for a commitment.

Spruance for the plaintiff.

Booth for the defendant.