The complaint sets forth, that that plaintiff is assignee tor value of a number of witness tickets of sundiy persons, who had been summoned by the State in divers pm ecu-*344tions, against divers persons, for divers crimes and misdemeanors, between first day of August, 1870, and first day of July, 1872, alleged to have been committed in the county of Alamance, of which the defendants are the commissioners. The tickets are not set out, but a list is made of them, and appended and referred to. It is not set out, nor does it appear, where, or before what Court, the witnesses attended. And the inference that might not unreasonably be made that they attended the Superior Court of Alamance, is rebutted by the fact, that many of them are signed by W. II. Bagley, Clerk of the Supreme Court, and the remainder by the Clerk of Ala-mance Superior Court, who certifies that the witness did attend Court, and that the several indicted were accpitted, or otherwise discharged, and that the cases had terminated at the cost of the State.
It is only by inference from what is said in the demurrer, that we get at the fact that the tickets signed by W. H. Bag-ley, Clerk of the Supreme Court, were for attendance before the Chief Justice as examining magistrate. There is no allegation of the Court in the complaint. If it be that the Chief Justice as an examining magistrate, had these witnesses before him, and authorized Mr. Bagley to act as his Clerk, and swear the witnesses, and certify tlieir tickets, there is no doubt about bis power to do. Act 1858-!9, ch. 279, sub. ch. 11, sec. 2; Acts 1868-’9, ch. 188, sub. ch. 2, sec. 1; Rev. 0. ch. 31, see. (37; and the facts ought to have been alleged in the complaint in, order that the Court might see that the tickets were valid.
It seems also to be necessary to the validity of the tickets, that they shall be passed upon and allowed by the Judge of the Superior Court, before whom the case is tried' or disposed of, who has the discretion to impose the costs on the prosecutor, or on the county, or on the State. Acts 18G8-’9, ch. 178, sub. ebap. 2, sec. 40. And who would also have the power to disallow a ticket if it appeared that the witness had failed to attend until he was discharged. Rev. C., chap. 35, sec. 39. Or to prevent a witness in several cases on the same day, from *345proving in moro than one case. Acts 1871 ’2, ca 186, sec. 3. And to see that only half fees are charged where the county has to pay. Acts 1870-’71, ch. 186, sec. 4. From all which the necessity will appear of having the Judge of the Superior Court, before whom the case was disposed of, to pass upon the cost, which of course includes all the witness fees therein. Until that is done, the County Commissioners cannot know their liability. The tickets given out in State cases by the Clerks are only evidence that the witness has attended ; but how he is to be paid is for Judge to say.
No point is made as to whether the plaintiff as assignee of several tickets from divers persons can maintain his action ; because, as we understood from the defendant’s counsel, it was not desired to multiply costs.
There is error in overruling the demurrer. Judgment reversed and judgment here for defendant.
Pee Cueiam. Judgment reversed.