
    Gray vs. Alexander.
    1. Where money has been received by a witness upon a judgment for costs from tin: hands of the sheriff, and such judgment is set aside on a motion to correct the tax-
    , ation, an action lies to recover the money back from the plaintiff in the execution, and not from the witness.
    2. Where a witness is examined, he is entitled to his fees, though he be incompetent. His incompetency may be waived, or his interest released; and it does not follow that ho was not examined, because he appears of record to have been incompetent.
    Alexander sued George Gray, by warrant, before a justice of the peace, of Cocke county, to'recover back a sum of money he had paid to-said Gray as a witness. A judgment was rendered in favor of Alexander for eight dollars. Gray appealed.
    The case was tried before Judge Anderson, and a jury of Cocke county, and a verdict and judgment rendered in favor of the plaintiff for the amount recovered below. And the defendant appealed to the Supreme Court.
    The bill of exceptions shows that Alexander brought a suit against James Gray, Jr., by warrant before a justice of the peace, that a judgment was rendered by said justice, from which an appeal was taken to the Circuit Court. George Gray was the security in the appeal bond of James Gray, Jr. Geo. Gray was summoned as a witness on behalf of James Gray, Jr. The case was tried, and judgment rendered in favor of defendant, James Gray, and judgment for costs rendered against Alexander. In the bill of costs there was an item of eight dollars taxed for the attendance of George Gray. Judgment was rendered on 31st March, 1845; execution was issued, and the cost paid by Alexander to the sheriff, and by him the sum of eight dollars was paid over to George Gray as witness fees. At the July term, 1845, Alexander moved the court to correct the taxation of costs. The plaintiff, Alexander, proved that George Gray was the surety of James Gray for costs of suit — that the sheriff collected the money from Alexander — that the witness, Gray, asked the sheriff for his money, and the sheriff paid him eight dollars. The sheriff who stated these facts, said that Alexander, when he paid over the amount of Gray’s attendance, spoke of Gray’s not being entitled to it, and paid the money with a full knowledge of all the facts. This was all the testimony on the motion to correct the taxation of costs. The court corrected the taxation, declaring that George Gray being security for the prosecution of the appeal, was not entitled to fees for attendance as a witness. This suit was then brought by Alexander against George Gray for the sum of money received by him.
    The presiding Judge, Anderson, charged the jury, that the money being received by Gray without consideration, he was liable to an action for it at the instance • of Alexander, from whom he had wrongfully received it — that it made no difference if Alexander paid the money with full knowledge of the facts, if he paid it on execution, and that he was not bound to resort to supersedeas or injunction to stay its collection.
    The defendant requested his honor to charge the jury, that if witness Gray was not objected to on trial, as an incompetent witness, his incompetency was waived, and he would be a good witness. This his honor refused to charge, and a verdict and judgment were rendered for the plaintiff Alexander, and defendant Gray appealed.
    Arnold, for plaintiff in error.
    Reneau, for defendant in error.
   Turley, J.

delivered the opinion of the court.

George Gray was a witness in a suit of Lorenzo D. Alexander against James Gray, Jr., summoned on the part of James Gray. He proved his attendance, which upon the termination of the suit was taxed in the bill of costs against L. D. Alexander, and by him paid to George Gray. At a subsequent term of the court Alexander moved the court to correct the taxation of the bill of cost, and exclude therefrom the amount charged for the attendance of George Gray, upon the ground, that at the time of his attendance he was an incompetent witness, being-security for the appeal from the justice. This correction was made by the court, and thereupon Alexander commenced this suit, by warrant before a justice, against the witness, George Gray, to recover back the amount paid him on the judgment for cost as a witness, and has so prosecuted his suit as to obtain a judgment therefor in the Circuit Court; to reverse which, this writ of error is prosecuted.

The judgment of the Circuit Courtis erroneous and must be reversed; because, .

1st. It does not follow, that because the witness was incompetent, by reason of his being security for the appeal, that he was not examined, for he might not have been objected to on that ground, and if he had been, he might have been released and other security given in his stead; and, therefore, as far as this court can judge from the record, the motion to correct the taxation of the bill of cost came too late.

2d. But if the correction of the taxation of the bill of cost was legally made, still this action cannot be maintained against the witness, because the money was not paid upon a judgment rendered in his favor, but upon one rendered in favor of James Gray, Jr. If the plaintiff, Alexander, had paid money by mistake, which he has a right to recover back by suit, his action should have been against James Gray, Jr., in whose name the money was collected, and who in contemplation of law received the same, because he was bound to pay his own witnesses and other cost, and recovered his judgment to indemnify him therefor.

The judgment of the Circuit Court is, therefore, reversed, and the case remanded for a new trial.  