
    Hansard vs. The State.
    The prosecutor is no party to the cause, and is not liable in any case for costs, unless it be so directed by statute.
    Hansard prosecuted Sawyers in the Circuit Court of Claiborne county, for a felonious assault. Sawyers was acquitted, and the defendant’s attorney moved the court, R. M. Anderson, Judge, presiding, to tax the prosecutor with the costs. This the court refused to do, but taxed him with the costs of three witnesses. The prosecutor appealed.
    
      Peck, for the plaintiff in error.
    The prosecutor is not a party. The acts of the legislature specify two cases only, in which the court may tax him with costs, to wit, where the prosecution is malicious or frivolous. The court has no power on this subject, except what is conferred by statute. Nic. & Car. 191.
    
      Attorney General, for'the State.
    In such an interlocutory motion, like the present, the court need not set forth the grounds of its action or the evidence on which such adjudications are based. Its action is presumed to . be correct. If the appellant thinks it erroneous, he must show the error of the court by an exhibition of the facts. 4 Hump. Simpson vs. The State, 456. If it appears to the Circuit Judge, that the witnesses were summoned at the instance of the prosecutor, that he knew they had no knowledge of the facts in regard to which they were called to testify, and that the summoning of them was procured for the malicious purpose of oppressing the defendant with costs in the event of his conviction, and of throwing it on the State in the event of an acquittal, it is clear that the court had before it a case of abuse of its process by the prosecutor. It is true the prosecutor is not technically a party to a State prosecution, yet he is the instrument by which the prosecution is set on foot; his name necessarily, in all cases, must be placed on record. He is in fact, for some purposes, a party of record. At common law the King paid no costs, and recovered none. The prosecutor paid his costs in the event of an acquittal, and in the event of either acquittal or conviction the defendant paid his costs. See Chitty, vol. 1, 824, 829: Hulloch on Costs, 601 to 607. See Barton vs. State, 3 Hump. It is only in specific cases, now provided for in England, that the King pays prosecutor’s costs. It is insisted that the power exists in the courts of Tennessee, without the aid of a statutory provision to tax the prosecutor with the costs, where it appears that he has maliciously prosecuted the suit, as well as where he has maliciously instituted it. It will aid the court to protect, by immediate action, the defendant or the State, as circumstances may require, by throwing upon the prosecutor costs which have been illegally and maliciously accumulated. It would be strange that the court should have the power to tax the prosecutor with the whole of the costs where they have been maliciously created, and yet not have the power to tax him with a part under the same circumstances.
   GreeN, J.

delivered the opinion of the court.

Thomas L. W. Sawyers was indicted in the Circuit Court of Claiborne county, for a felonious assault, and the plaintiff in error was prosecutor. Sawyers was acquitted, and amotion was made to tax the prosecutor with the costs. The court discharged the motion to tax the prosecutor with the costs generally, but because it appeared to the court that several witnesses who had been summoned for the State, knew nothing about the case, his Honor ordered and adjudged that the prosecutor should pay the costs of said witnesses. From this judgment Hansard appealed to this court.

A prosecutor is no party to a cause, and is not liable for costs in any case, except as that liability may have been created by statute. The act of 1794, ch. 1, sec. 76, and 1807, ch.24, sec. 1, provide that if the defendant shall be acquitted, and the court shall be of opinion that the prosecution was malicious or frivolous, it may tax the prosecutor with the costs. The only case in which the prosecutor can be taxed with costs, is that specified in these two acts, namely, where the prosecution is malicious or frivolous. Butin this case, the court adjudged that the prosecution was not frivolous or malicious, so as to justify a judgment against the prosecutor under these acts. But for a reason not mentioned in either of these statutes, the prosecutor is adjudged to pay part of the costs. This we think the court had no power to do.

Let the judgment be reversed.  