
    Ewing, Clerk, vs. Lusk.
    'The clerk of a court may maintain assumpsit against a plaintiff, for the fees allowed him by law, when they cannot be collected from the defendant.
    It appears from the record, that Lusk & Co. had brought suit against one Kenne; recovered judgment; but on final process the said Kenne proved insolvent and was discharged according to act of assembly, the costs not having been made.
    Ewing, being clerk of the court, brought this suit by warrant before a. justice of the peace, and presented his account for services rendef ed at the instance or request of Lusk, in the prosecution of that suit. The items are set down in words at length, and the taxation according to the fees allowed by law. The account being proved, the justice gave judgment for Ewing; Lusk appealed to the county court, where a trial was had before a jury. The county court charged the jury, that the account as proved was legal evidence, and admitted it to go to the jury; there was a verdict and judgment for the plaintiff, and Lusk appealed in error, both parties consenting, to this court.
    
      Fogg and W. C. Anderson, for plaintiff in error.
    
      Washington and Thompson.) for defendant in error.
   Peck, J.

delivered the opinion of the court.

The question in this case is, can the action be maintained? Lusk has a judgment for these costs against Kenne: had they been collected and paid over, the clerk would have received for himself the portion the law allows him. The judgment for costs following the determination of the suit, was the only natural and consistent mode that could be adopted by the legislature. To have entered separate judgments for the part of each officer, witness or other attendant, would have been confused and the labour endless; but in effect the taxation of the costs separates and makes distinct each claimant’s part, insomuch that there never has been difficulty when the costs have been made, for the court through its officer to make payment. Here the fund was not made to satisfy the costs claimed in this action. There is no difficulty in perceiving that the duty was performed at the instance of Lusk, and for his benefit: as to the. amount charged there cannot be imposition, because the law regulates the charges separately.

But it is said that Lusk has recovered, and the cost following the event of the suit, if not made out of defendant, is lost to others having performed services. If this argument proved any thing, it would go to establish that the fictitious mode of giving the judgment for, and collecting costs, on the execution, would be turned to defeat the implied assumpsit of Lusk to pay for the services. The rule is the other way; fictions may he resorted to for the attainment oí justice, but not to deteat it. It is just as honest to pay a clerk for his services, as to pay a mechanic for his labour. At common law it is clear the action in this form would lie; and we do not perceive in any of the statutable provisions touching the collection of costs, that which would defeat it. .

Judgment affirmed.  