
    Alexander Corrie, vs Jacobs et alios.
    
    
      The clerk of the court may issue execution for his costs, against the party liable to pay them, whenever the suit is settled or de~ terminad, though no judgment be entered up in the cause.
    
    
      But unless he have previously delivered to the party an account-of the particulars and amount of fees charged, the execution is irregular and will be set aside on motion.
    
    
      No costs are allowed on such executions, except two and a half per centum, commissions on the amount collected, to the sheriff.-
    
    Alexander Corrie, the late clerk of the court for Beaufort district, being about to retire from office and having a large amount of outstanding costs due to him, employed an attorney in the collection of them. He issued executions and placed them in the hands of the sheriff for collection. The attorney charged $1 28 for each execution; the sheriff also charged his usual fees. There were two classes of cases: the first, those which had been settled at the plaintiff’s costs, without having been carried into judgments: the second, where the plaintiffs had prosecuted their suits to judgment, and the costs had been, taxed in the execution against the defendants.
    
      A motion was made at Coosawhatchie, spring term 1824, to set aside all these executions on the following grounds: -
    1st. That no executions could be issued against plaintiffs, without regular judgments having been entered up against them.
    2nd. That no executions ought to have been issued, until a bill of the costs had been made out and presented to the party liable to pay them, and payment demanded of him.
    3d. That all the demands which were of four years standing were barred by the statute of limitations, and therefore no execution could be issued upon them.
    4th. That the attorney’s and sheriff’s costs were illegally taxed, as they were not entitled to any fees on such executions.
    The presiding judge granted the motion, and this was a motion to reverse that decision. . i
    
      For the motion, it was argued that so much of the act of 1791 as requires the officers of court, previously to issuing executions for their costs, to furnish the party of whom they are demanded with a bill or statement, can only apply to cases winch have been determined without proceeding to final judgment. After judgment, the costs are taxed and included in the judgment; w’hich of itself is notice to the party. The object of furnishing the statement is that the party may have an opportunity of contesting the taxation and correcting any mistake. It must be sufficient' however, for the clerk to put the statement into the hands of the sheriff; who is bound to serve it before he proceeds to levy. If he neglect to do so, he is answerable-for any injury the party may sustain, but it does not render the execution irregular.
    The plaintiff is liable for the costs incurred in prosecuting his suit, and if demanded, he is bound to pay them at every step. The judgment against the defendant is for costs which the plaintiff is supposed to haveexpended; but the plaintiffis not thereby discharged from his liability. They are the Plaintiff’s costs and he may receive them, release them, or give indulgence, The ¿officers in such case are entitled to costs: of either party, 7 Cranch, 276; Bao. Ah. Tit. Costs, (Am. Ed.)
    
    
      An execution for costs is upon the same footing with any other execution, and the costs of executing it must be allowed.
    The act fixes no limitation of time to the right of issuing executions for costs. It is attempted to be fixed by analogy to the provision of the statute of limitations, which respects simple contracts; but the analogy is rather to debts of record; the taxation of costs being in the nature of a judgment.
    
      Against the motion, it was contended that a judgment should in every case be entered up before execution issued for costs. The act does not authorise executions for costs until the suit is determined, and in whatever way determined, judgment may be entered. The officers perhaps have a right to demand their costs for every servict rendered by them at every step of the cause;, but if they waive that right, the contract is to wait until the determination of the cause, and to have recourse to the party who shall be made liable by the judgment of the court.
    When the judgment is against the defendant, the officers can have no recourse against the plaintiff, until nulla bona returned.
    Costs are not allowed in any case unless given bj' statute. This act gives the sheriff 2 1-2 per centum, commissions, and excludes the inference of any others costs being allowed.
    
    If the common law limitation of twenty years is to prevail, there must be a judgment, and the execution cannot be issued without it. If there is no judgment, it is in the nature of a simple contract demand.
   The opinion of the court was delivered by

Mr. Justice Mott.

This method of proceeding to collect the fees of the officers of court is attempted to be supported bj the provisions of the act of 1791, 1 Brevard, 348, which is ih the following words, “ That at whatever stage any suit may cease dr determine, the attorneys, clerks and sheriffs, shall have their fees, taxed, and on non-payment thereof executions may be issued against the party from whom they are due and be lodged -tflth the sheriffs of the respective districts, and returnable at the per ■ ensuing return day, and the sheriff for his trouble in collectin g such fees shall be allowed a commission of two and one-half per centum, to be paid by such defaulter. And no person shall be compelled to pay any of the aforesaid fees, unless at the time of the demand or before distress of goods is made, an account thereof shall be delivered, signed by the officer to whom the same is due, specifying distinctly every article in words at length, with tbe particular fee charged for it, and shall give a receipt for the same if required.”

“ That the several clerks and registers of the courts of justice and sheriffs throughout the state, shall collect in and receive their own fees from the different suitors or persons who are liable to pay the same in the said courts of justice respectively, except where the plaintiffs or complainants in any suit' shall reside in foreign countries or without the limits of this state, in which case the agents or attorneys of the said plaintiffs or complainants shall be answerable for the payment of said fees, except the clerks of county courts, whose fees shall be collected as heretofore.”

1st. I think that the object of the act was to give to the officers of court a cheap and summary remedy for the collection of their costs. It authorises them to have them -taxed and tó issue executions, at whatever stage the suit may be settled or determined, against the party liable to pay the same. It could not be intended that a judgment should be first entered up, because the execution is not required to be issued in the name of the party to the suit, nor for his benefit, but for the fees of the several officers w'ho have been employed; and the costs of a judgment would frequently be more than all the other cost due; indeed in some instances, three times the amount.

It has been contended that an act authorising an execution to issue in this way would be unconstitutional. But I cannot perceive any ground on which such a position can be supported. A judgment is only one link in the chain of proceedings, and surely the legislature may dispense with it if they think proper. In our proceedings by way of summary process, neither declaration nor judgment are required. I think no doubt can be reasonably entertained, of the constitutionality of the measure. The act does not indeed mention in whose name the execution shall be issued: But whether the clerk issue it in his own name or in the name of the party -to the suit, cannot in my view affect the question. I am of opinion therefore that the .Clerk is authorised by the act to issue an execution, at whatever Stage of the proceedings the cause may have terminated, for the fees then due, without any judgment having been entered up. Without such construction, the act would be a dead letter. For previous to the passing that act, if the plaintiff became non-suited or discontinued or let fall his action in any mnnner, he became liable for costs, and judgment might have been entered Op against him for them.

2nd. But I am also further of opinion that the clerk was not authorised to issue an execution, until he had presented the party by whom they were due with a bill, specifying the items, and demanded the payment of it. It was not the intention of the act to make the clerk the sole judge of the amount of fees due, but to afford the party an opportunity of discharging the debt without execution. I am of opinion therefore, that on this ground, the decision of the court below ought to be supported.

3rd. It is not necessary to the decision of these cases, that any opinion should be given on the other ground. I feel no reluctance however, at expressing my own. The right to issue an execution in such case is derived alone from the act of the legislature. The act does not change the nature of the demand; it only furnishes a new method of enforcing the payment of it. If therefore the claim be barred, the remedy is lost. I am of opinion therefore, that an execution could not be issued after 'the lapse of four years from the termination of the suit.

4th. The question respecting costs on these executions, is not more difficult. The right to issue an execution in this summary way, is a privilege allowed to the officers of court, and if (they-will have the benefit of it, it must be without costs. One object of the provision was to save expense.' The clerk therefore is not entitled to a fee for issuing the execution. He is un-<2cr no necessity to employ an attorney. The act allows the sheriff 2 1-2 per centum for his trouble in collecting such feeSj and those are the only costs allowed.

Cross and Gray, for motion.---Clark, contra.

Some question has arisen with regard to the form of the execution, and in whose name it shall be issued. The act is, silent upon the subject, but I presume it may be in the name of the person to whom the costs are due, as the 29th sec. of the a*ct provides' that the several clerks and registers of the courts of justice and the sheriffs throughout the state, shall collect in and receive their own fees from the different suitors or persons liable to pay the same, &tc.” From this provision it would appear that the fees are given to the respective officers of the courts and not to. the party, and that they are authorized t& collect them in their own names. I therefore concur in opinion with the presiding judge, and think that upon the three last grounds the executions were irregular .and ought to be set aside..

. The second class of cases is, where the plaintiff has recov-r cred judgment against the defendant. In those cases, I am of opinion that the officers of court can in no event have an execution against the plaintiff. The words of the law are, “ at' whatever stage any suit may close or determine, the attorneys, clerks and sheriffs shall have their fees taxed, and on non-payment thereof, execution may be issued against the party from whom they are due, &c.” That must mean the party who becomes legally liable by the determination of the suit. The costs in such cases are taxed in the judgment with the debt or damages and collected with them. The plaintiff is nevertheless liable for the costs which he has created, but he is liable on his contract only and is not subject to an execution. It is a sufficient privilege granted to the officers of court, that they are already allowed the double remedy of an execution against one party and an action against the other, without allowing them an. execution against both. I am, therefore, of opinion that the decision of the court below was correct in these cases also, and that the motion in both instances ought to be refused.

Bay and Richardson, Justices concurred.

Gantt, dissented.  