#### John Taggart (late Sheriff of Abbeville) *v.*Robert Hutson.

The Fee Bill of 1827, (Acts of 1827, p. 57,) provides that the sheriff “ shall be entitled to charge for conveying prisoners from one district to another, for every mile, going and returning, *in addition to all necessary charges,*6 cents per mile.” These charges in the Usual administration of justice, are not to be paid by the State, unless the defendant should be acquitted, or be unable to pay the same. But the conveying of a prisoner under *habeas corpus,*from one district to another, is not in the usual administration of justice ; when done at the instance of the prisoner, whether he be acquitted or convicted, he is bound to pay all *legal and proper charges*in that behalf.

By the words, in *addition to all necessary charges,*it is meant, that the sheriff may charge for all expenses which are necessary, in order to enable him properly and safely to convey the prisoner. Under this interpretation, not only the *money paid*by the sheriff for his own support and *301that of the prisoner in going to and returning from the place to which the prisoner is conveyed under a habeas corpus issued at his instance, but also *horse hire*and the *hire of a guard.*

The legislature have *regulated*the number of the *guard*to be employed by the sheriff in the removal of prisoners, and the charges of the sheriff in this behalf, when chargeable to the State; and when the prisoner is conveyed at his own instance, he is bound to pay the same charges which the State might be compelled to pay, if he was conveyed at her instance.

*Before RICHARDSON, J., at Abbeville, Spring Term,,*1839.

This was a summary process, for fees due to, and expenses incurred by the plaintiffj as sheriff, on a habeas corpus, sued out by the defendant. The report of the presiding judge is as follows :

“ J. Taggart was sheriff of Abbeville district, and had in his custody Robert Hutson, the defendant. The defendant sued out a writ of habeas corpus, and was carried before justices.' He sued out the same writ, and was carried to Columbia, one hundred miles — was remanded in both instances; and afterwards tried and acquitted. Taggart then sued defendant on the following bill of particulars, to wit:

For carrying defendant before judges twice, $2 00

To mileage to and from Columbia, 12 00

Horse hire, $4 00; hire of a guard, $15 00, 19 00

For money necessarily expended on the road, and at Columbia, 54 26

I considered the sheriff entitled to charge, under the fee bill of 1827, as follows:

1. For carrying the defendant to the judges, each time, $1 00 — allowed by act, $2 00

2. For carrying him 100 miles and back, 12 00

3. For his dieting and lodging on the way, the money expended by the sheriff, 54 00

These are “ the necessary expenditures ” of the act; but not entitled to horse hire, #4 00 — that is included in the carrying defendant; and not entitled to any hire of a guard, $15 00 — the *302defendant is not to pay the price of his custody. These two last charges are, therefore, disallowed, and the decree given for $ — .”

The defendant appealed, and now moved to reverse the decree of the presiding judge, so far as the defendant is charged with mileage and expenses.

The plaintiff also appealed, and moved to reverse the decree, so far as it rejects the charges for horse hire and hire of a guard.

Cuma, per O’Neall, J.

The liability of the defendant to the demand of the plaintiff, so far as it is contested, depends upon the construction of the act of 1827, (acts of 1827, p. 57.) It provides that the sheriff shall be entitled to charge “ for conveying prisoners from one district to another, for every mile going and returning in addition to all necessary charges, six cents per mile.” These charges, in the usual administration of justice, are not to be paid by the State, unless the defendant should be acquitted, or be unable to pay the same. But the conveying of a prisoner under habeas corpus from one district to another, is not in the usual administration of justice. It is done at the instance of the prisoner, and for his benefit alone ; and it hence follows, that whether acquitted or convicted, he must pay all legal and proper charges in that behalf. What is meant by the words, “ in addition to all necessary charges ? ” It seems to me, that by the plainest rule of interpretation, the ordinary and usual import of the words, it means that the sheriff 'may charge for all expenses which are necessary, in order to enable him, properly and safely, 1o convey the prisoner. For these are necessary charges. Under this interpretation, not only the money paid for the support of the sheriff and the prisoner, in going to and returning from Columbia, is covered, but also the horse hire and the hire of a guard. The horse was necessary to carry the prisoner, and the guard was also necessary for his safe keeping. In relation to the guard, it maybe remarked, that the legislature have regulated the .number to be employed, and the charges of the sheriff in this behalf, are constantly allowed, and paid in the contingent accounts. This shows that the legislature regard as proper, that the sheriff should employ a guard in con*303veying a prisoner from one district to another, and hence, I think, it follows, when *he is*conveyed *at his own*instance, he must pay the same charges which the State might be compelled to pay, if he was conveyed at her instance. .

*Wardlctw*& *Perrin,*for the plaintiff.

*Burt*& *Thompson,*for the defendant.

The motion on the part of the defendant is dismissed; that on the part of the plaintiff is granted.

Evans, Earle and Butler, Justices, concurred.