
    Gilbert G. Washington vs. Nathan Ewing, et al.
    
    In Error.
    An execution must be based upona precedent judgment; therefore, no execution nan be legally issued by the clerk for his costs, against a plaintiff who has obtained a judgment for his demand and costs, although defendant be wholly insolvent, and the sheriff is unable to make either debt or costs out of him.
    Washington recovered judgment against Eli Talbot, in the Davidson county court, for'his debt and costs of suit; execution issued against Talbot, which was returned, llno property found;” whereupon the clerk issued an execution against Washington, the plaintiff, for the costs of suit. The execution was superseded; and on return of the supersedeas and execution, a motion was made to quash the execution. The county court refused to quash the execution, and dismissed the supersedeas; from which judgment (by consent of parties,) this writ of error is prosecuted.
    
      Washington for plaintiff in error, F. B.Fogg for-defendant.
   Peck, J.

delivered the opinion of the court. The ques-j.jon presented by the record for the consideration of the court, is, whether the clerk had a right to issue an execution for costs against Washington, the plaintiff, upon the failure of the sheriff to make the money upon the one issued against Talbot, the defendant?

The act of 1779, ch. 4 s. 4; re-enacted hy 1784, ch. 7, s. 58; 1794,cA l,s. 74,75; and 1796, ch. 7,s. 5,9, provides, “that it shall and may he lawful for the clerks, &c., on their fees not being paid, by the party from whom they are due, to make out execution directed to the sheriff, &c.; to said execution shall be annexed a hill of costs, &ci The 74th sec. of the act o/1794, provides, that “the party recovering, shall be entitled to full costs, unless otherwise directed by law.”

On recovery had, judgment is entered for the thing, or amount recovered, and costs of suit. The acts of assembly specify the fees allowed, with great particularity; and have strictly guarded against imposition, by declaring, “that on every execution shall be indorsed the items charged, in words at full length; and that every clerk shall keep in his office, for public inspection, a hill of his fees, to the end that all may be informed of the amount clerks have a right to charge for their services.”

The design of these, acts must he obvious. The judgment for costs of suit, is not now as formerly in numero, but for costs generally, to be taxed by the clerk. As the taxation of costs is a matter in which the clerk has a personal interest in general, the statutes, referred to, leave him no discretion, but wisely prescribe limits for his government on every side. See the act of 1796, ch. 7, touching his duty and fees.

We premise thus much, before we proceed to what is in our estimation, a sound construction of the various acts of assembly recited. The practice contended for by defendants in error, is certainly not given by the express words of the aforesaid acts. The words, “the costs not being paid by the party from whom they are due” must refer to him against whom the judgment has been rendered; and it would be unsound to allow the practice by intendment, when we re cur to the caution with which the legislature have limited the demand of clerks, in all cases where they may legally make them.

It is a settled rule of law, that in all cases a judgment shall precede execution, and where there is a liability depending upon a contingency, a sci fa. is necessary before the party can be charged. He is entitled to a day in court; and to charge him, his liability of whatever nature, must he considered of by the court. This construction does not defeat the acts in question. In all cases for costs ordered to be paid on continuances, petitions, motions, &c.; in short, in all exparte proceedings, to which- costs are incident, if the party liable for costs, by the judgment or order of the court, do not pay them, the clerk, under those acts, may issue execution. We do not say that there is no remedy for the clerk, in cases where he has performed services, and has been unable to collect them by reason of the insolvency of him charged by the judgment — that question is not raised by the record.

A case from 1 Haywood’s Rep., has been relied upon to support the mode of proceeding adopted herein by the clerk. That case seems to be founded rather on a long continued practice of the courts of North Carolina, than on any statutory provision with which we are acquainted. But such has not been the practice of our courts; and we cannot now give it our sanction.

We are, therefore, of opinion, that the county court erred, and proceeding here to give the judgment, that court ought to have given — let the execution be quashed.

Execution quashed.  