
    Alexander Corrie vs. David Fitts, same vs. Charles Givens.
    When a judgmentis rendered against a defendant he is liable to pay the costs and from him the clerk should collect them. If he be insolrent and unabla to pay them, then the clerk may have recourse to' the plaintiff, and may maintain his action against him for services performed.
    In this state, costs abide the determination of the «ase, and the clerk may collect his own:
    
      It seems the plaintiffs have no power to receive or collect the easts of ths officers of court.
    Tried in Beaufort district, in November term, &824, Before Mr. Justice Richardson.
    
      These were too cases of summary process to recover fees due to the plaintiff, while he was clerk of the court of common pleas for Beaufort district, in several actions to which the said Fitts find Givens were plaintiffs.
    The evidence adduced by the plaintiffin the first ease, was: Istthe original judgment of David Fitts, vs.-: and 2dly, the execution in the same case marked “ satisfied.” This .the presiding judge decided was insufficient to prove that Fitts had received the clerks fees, taxed on the judgment of Fitts vs. —■—, and that he was not liable to the clerk, unless he had received them, or it appeared that the defendant was insolvent. In the second case, the plaintiff produced, first the original judgment of Charles Givens vs.-, butno Ji.fa. "’and secondly, the sheriff’s receipt book for the debt, paid to C. Givens, with attorney’s costs, paid to the attorney oil record, but no receipt appeared for the clerks costs. On this evidence the presiding judge held that neither of the defem* dants were liable to the clerk; as it was the rational presump-iion that the sheriff had the clerk’s costs, and to him the clerk should look.
    Appeals were now made in these cases on the following" grounds: In the first ease,
    1st. Because the plaintiff produced sufficient proof to establish his right to recover his fe.es from the defendant, by adducing the judgment rolls in the several actions in which said Fitts was plaintiff.
    2nd. Because once having proved his right of action ágainst the defendant, the plaintiff threw the burden of proof on the defendant, to shew that the fees which were the subject of action had been paid to Come, the plaintiff.
    3rd. Because the presiding judge decided that the return by the sheriff of satisfaction of debt and costs on the execution issued in the actions in which Fitts was plaintiff, afforded a presumption that the clerk’s costs had been paid by the sheriff to the clerk.
    
      4th. Because the plaintiff in every action is responsible to the clerk for his fees in all cases, whether the plaintiff has himself received those fees or not.
    5th. Because the sheriff in collecting the clerk’s costs irff every action, does not act as the agent of the clerk, nor collect the clerk’s fees for him, but acts for the plaintiff in the action as his agent, and collects for him the fees which the plaintiff is supposed and ought already to have paid to 'the clerk; and because there was no evidence that th.e sheriff had collected the clerk’s fees, or paid them to him.
    In the second case, on the grounds:
    1st. Because the plaintiffin every action is responsible to the clerk far his fees in all cases, whether the plaintiff himself has received those fees or not.
    2d. Because the’production of the judgment rolls, in the? several actions in which Givens was plaintiff, was sufficient to prove the services of the clerk for the benefit of Givens, and to establish the clerks right to recover his legal fees, fortho$e services from him, for whom they were rendered.
    3d. The performance of the clerks official services for the benefit of Givens, having been proved by the records of the court, the clerks right to recover his fees was complete, and the burden ofproof was thrown upon Giveris, to. show that those fees had been paid to the clerk entitled to receive them;
    4-th Because the presiding judge decided that the executions issued in the several actions in which Givens was plaintiff ought to have been produced, to show whether or not the clerks costs had been collected; and that not producing the executions was suspicious and created a presumption that the costs had been paid, though there was no other evidence to that effect.
    5th Because, if the executions ought to have been produced, it was the duty of defendant to produce them, .as the plaintiff had proved his services for the defendant, and wall entitled to recover for them, on his implied contract.
    
      6th, Because the presiding judge decided that the sheriff’s books containing the receipt, of the plaintiffs, of their debts, and of the attorneys of their fees, but not containing the receipt of the clerk for 1ns, did not rebut the presumption arising from the return of the executions, “satisfied,” that th# clerk’s fees had been paid to him. "'
   ColcocK J.

The act of 1791 fixes the fees of all the public officers of the state; and by-the 27th section declares that at whatever stage any suit-may cease or determine the attorneys, clerks and sheriffs shall have their fees taxed; and on nonpayment thereof, execution'may be issued against the party from' whom they are due, and be lodged with the sheriffs of their respective districts and returnable at the ensuing return day; and the s'-'m-iff for his trouble in collecting such fees shall be allowed a commission of two and one half per cent, to be paid by such defaulter. And by the 29tli section it further declares 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. (ls¡! Brev. 340 34S.J From whence it appears, that clerks are required to collect their own fees, and clothed with ample power to do so. Although, then, the judgment states thatthe costs are adjudged to the plaintiff, he has no power to collect or- receive the costs of the officers of the court; it is mere form. By the practice in England, the plaintiff pays to the clerk of the court his costs at every stage of the case as it proceeds, and there the costs, when recovered, are correctly stated to be plaintiffs costs, -which he has expended, &c. and hence the form of the judgment: but here the costs abide the determination of the case and every officer, as before shewn, is required to collect his own. When a judgment is rendered against a defendant, he is liable to pay the costs; and from him the clerk should collect them, íf he be insolvent, and ■ consequently unable to pay them, then the clerk may have recourse to the plaintiff and may maintain his action against him for services performed; .as decided in the case of the same plaintiff vs. Jacobs Seal. (Harper’s Reports, 326.) at the spring sitting of 1824. Now what are the facts of these cases as stated by the presiding judge. In the first case .an .execution was produced with satisfaction indorsed thereon; This evidence so far from proving that the' defendant' could not pay, was conclusive that he had paid, and paid too to .the agent of the plaintiff,' forthe sheriff must be so considered. In the second case, the-judgment was produced but no execution, and the sheriffs receipt book shewing that the debt was paid to the plaintiff; -and the attorney’s costs to him: Now this was no evidence of the inability of the debtor to pay; on.the. contrary,-it affords a strong presuniption ©factual payment to the sheriff.. In-, deed, I am at a loss to conceive..why. ; these .actions w.ere brought against the .defendants when the plaintiff ;had. such' evidence in possession against the sheriff. ... ' -

Alston & Cummins,-for AppeII;tot.sv;..cat

Morrall, contra. .

The motions are dismissed.  