
    Officers of Court v. The Bank of Port Gibson.
    If the officers of court have judgment against a bank, and the bank have a judgment against them, the court will order the judgment in favor of the officers to be credited on the judgment in favor of the bank, if the latter exceed the former.
    A person claiming to be assignee of a judgment in favor of A. against B., cannot object to a set-off of that judgment against a judgment B. has against A. in the same court, without producing evidence to the court of the assignment of A.’s judgment to him.
    Whether the assignee of a judgment in favor of A. against B. can make himself a party to a motion by B. to offset a judgment he holds against A. in the. same court, against the judgment A. holds against him. Query ?
    
    On appeal from the Claiborne circuit court.
    The officers of the circuit court of Claiborne county, having issued eighty-nine executions against the Bank of Port Gibson, for costs jn cases returned “no property found,” wherein the bank was plaintiff, the bank petitioned the judge of the first judicial district for a writ of error coram nobis and supersedeas.
    
    The petition states, that the clerk of the circuit court of Claiborne county had issued and placed in the hands of the sheriff eighty-nine executions of fieri facias, returnable to May term, 1843, of said court, in favor of the officers of court, numbered as set out in the petition, amounting, in the aggregate, to about $1400, which were levied on the property of the bank, to be sold on the first Monday of May, 1843; that in the bill of costs in said executions there were fees taxed to Daniel McDougall, clerk of that court, to the amount of $618, many of which were certificates, motions, and orders that were not required by law to be made, and were superfluous and unnecessary, and to enhance cost only; among which are designated fees for certificates of cause of action, of taxation of costs, and motions and orders; that the bank had judgments in said court against said McDougall, rendered respectively November term, 1840, for $1388, and December term, 1841, for $925 26; neither of which they are able to collect of him by execution.
    That in said executions there are fees taxed to George H. Evans, deceased, former sheriff, to amount of $271, and that said bank had outstanding judgments against him, one for $4,832 20, 28th May, 1841; and $880, rendered 27th May, 1842; and one for $626 20, rendered 7th June, 1842; which the bank is unable to collect by execution at law. That in said executions there are taxed to R. I. Bland, deceased, a former sheriff of said county, fees to the amount of $183, which said Bland in his life-time transferred to Benjamin G. Demphys; that the bank has demands to a greater amount'against said Bland, and judgments against said Demphys now in force, rendered in said court; that one of the executions issued against said bank for cost in the suit agqinst said Demphys, et ah, on which there is a judgment for $581, yet unpaid ; that cost taxed in said executions to said McDougall, Evans, and Bland, should be satisfied by crediting the amo,unt on said judgments in favor of the bank against said McDougall, Evans, Demphys, and Bland, respectively. That among said executions are some obtained in suits in which the bank never had an interest,, prosecuted in the name of the bank, without its leave or knowledge, and that all the others were obtained in suits that resulted in favor of the bank, in which case the bank is bound only to pay their own cost; that in no case is either of said executions in a suit that resulted against said bank; and that the clerk cannot properly issue executions against said bank, until a judgment is first rendered against it.
    That a large portion of the costs taxed in said executions against the bank, not taxed to said McDougall, Evans, or Bland, are taxed as due to Ater Davis, deceased, a former clerk of said court, who died indebted to said bank in a sum more than the costs, so that nearly the whole amount of said executions were more than balanced by debts due the bank by the officers of court, in whose name and for whose use the executions are issued; that it is unjust and inequitable to collect them, while the demands of the bank against them are unpaid and uncollectable by the law. Wherefore the bank prays, in her petition, that said writs of fieri facias, enumerated,
    1. May be stayed to abide the order of court.
    2. That they and the levy thereon may be quashed.
    3. That the costs may be retaxed.
    4. That the amounts due to the said McDougall, Evans, Demphys, or Bland and Davis, may be satisfied by an application thereof to their credit on the demands respectively due by them to the bank. The petition was sworn to by the cashier of the bank. Upon which petition the judge granted a supersedeas, bond being given by the bank. Citation and supersedeas issued, and were executed.
    Then follows in the record filed in this court a deed purporting to be an assignment from Daniel-McDougall to W. McDougal and L. N. Baldin, executed 21st April, 1841, of all his fees, due or afterwards to accrue and become due, to secure certain debts alleged to be due to the assignees. r Upon this deed was an assignment from F. S. Hunt, assignee in bankruptcy, to L. N. Baldin. The answer of Daniel McDougall to the petition of the bank for supersedeas was also in the record. It did not appear, however, that the assignment had been read in evidence in the court below, nor was a bill of exceptions filed.
    On the 10th of June, 1843, the court made the following order: On hearing the motion, and evidence, it is ordered by the court that the costs taxed in the said executions named in the petition, so far as the same are taxed to R. J. Bland, be satisfied by crediting the same on the judgment of the Bank v. Benjamin G. Demphys, assignee, of said cost; that the costs taxed to George H. Evans be satisfied by a credit of the amount thereof on the notes of said Evans, belonging to said bank, for $146 39, and $463 32, the parties agreeing thereto; that the costs taxed to Daniel McDougall, for services prior to 1st March, 1842, time of filing his petition for bankruptcy, be satisfied by. crediting the amount on one of the judgments of said bank, against said McDougall.”
    “To which decision of the court Lemuel N. Baldin and Nicholas Baldin, assignees of the fees of said McDougall, prayed an appeal to the high court of errors and appeals of the state of Mississippi, which is granted them by the court, they having filed and executed their appeal bond, which is approved by the court.”
    The counsel of appellant filed no brief.
    
      Thrasher and Sillers, for appellees.
    The prominent question for the consideration of the court is, did the circuit court decide correctly in ordering the fees of the officers of court satisfied, by passing the amount of the same to their credit, on judgments against them in favor of the Bank of Port Gibson! The petition and the record accompanying it in the court below, set out distinctly the names of the several persons intended to be embraced in the term “officers of court,” and the several amounts due to each of them. It also sets out distinctly judgments in favor of the Bank of Port Gibson against each of the individuals embraced in the term “ officers of court,” with their dates and amounts. It also charges fully that the bank had been wholly unable to collect anything from either of said parties, on either of said judgments, and that executions on the same had been returned “ no property.” It sets out that most of the cost executions in this controversy were for costs due in cases in which the bank had recovered judgment, and some of the judgments were against these very officers of court. It prays that the costs taxed in favor of said officers of court may be satisfied by crediting the amount of the same on said judgments in favor of said bank against said officers of court. The truth of the petition was not and cannot be questioned. The court granted the prayer of the petition.- Did the court decide correctly! That one judgment may be set off against another, or costs against costs, or a judgment against costs, are questions that cannot now be controverted. It may be done indeed by motion in a court of law, or by bill in chancery, and the authorities for either course are innumerable. 14 Johns. 70, 72, 75 ; 3 Ibid. 247; 8 Ibid. 277; 15 Ibid. 407; 3 Caines R. 190, and note a; 2 Ibid. 105; 1 Johns. Cas. 102; 1 H. Black. 23, 217, 657; 2 Ibid. 440, 587; 2 Bos. & Pul. 28; 1 Cow. 206 ; 3 Ibid. 353; 13 Wend. 649, (strong); 3 Bibb, 253. Another question suggested by the record is, the right of the officers of court to issue an execution for costs against the bank, when she is successful in her suit. This is a twofold question — whether the bank is liable at all; and if she is, can an execution issue against her for costs, unless a judgment for costs has been first rendered 1
    
    1. Is the bank liable for costs at all in this case 1 At common law the plaintiff is not liable for costs. 1 Bac. Abr. Costs, A; 2 Jac. Die. 106; 1 Wash. C. C. Rep. 107. But by our statutes, (How. & Hutch. 616, sec. 12,) it is enacted that the party in whose favor judgment shall be rendered, shall be entitled to full costs, &c. This is a declaratory statute, establishing a right and a remedy. Under this act it seems clear that if a plaintiff recover judgment he shall not pay costs, because neither the common law nor the act make him liable.
    In How. & Hutch. 586, sec. 40, it is enacted that a resident plaintiff shall, upon motion, be ruled to give sufficient security for all costs accruing in his suit, provided that the party making such motion shall swear that the plaintiff will not be worth the costs, &c., and if the plaintiff fail to give the security as required, his suit shall be dismissed,, and execution for costs issued against him. Does this act make a plaintiff liable, unless he binds himself by becoming security for costs ? I think not. There is nothing in the statute which says, directly or indirectly, that the plaintiff is liable without a motion against him. True, the act entitles the officer to security, upon motion and affidavit that plaintiff will not be worth costs, and this is the only clause in the statute book that even winks at plaintiff’s liability when he becomes the successful party in the suit; but it must at the same time be recollected that the act is establishing new rights and remedies, not only in derogation of the common law, but also of the statute, which says, that the successful party shall be entitled to costs. This act affords the officers summary relief, and the plaintiff cannot resist the motion, but is compelled either to give security, or have his cause dismissed and pay the costs accrued. If the bank is liable under this act, it is by mere inference and intendment; and it is a well-settled rule of law, that in summary proceedings nothing shall be taken by intendment, but the parties will be confined strictly to the statute. 3 Stew. & Port. 279 — 283.
    In order to construe this act, we must first inquire what were the old law, the mischief, and the remedy 1 The old law was, that the successful party should have costs; the mischief complained of was, that an insolvent plaintiff could sue, and if cast in his suit, or if he gained his case, and the defendant was insolvent, the officers lost their costs. The remedy desired was, that if the plaintiff was cast in his suit, or the defendant proved insolvent, the officers might, in either event, have thejr costs secure; and, in order to make such an important change and inroad upon the l,aw, ought not the law to be clear and unequivocal 1 Accordingly, the remedy desired was provided. This construction establishes a singular state of case, to wit: that if a plaintiff is insolvent, he may be ruled to security for defendant’s costs, but if he is solvent he cannot be made liable; but this is not the first strange law in the statute book, and we must take the law as we find it and as the legislature were pleased to give it to us. The officers are entitled to recover costs, only under the statute, and they must follow the statute to recover them. There are but two instances' in the statute when the plaintiff must pay costs: 1st, when he loses his case, dismisses it, or is nonsuited; 2d, when on oath of his insolvency and motion he is compelled to give security for costs. At common law he is not liable for costs; by statute he can be made liable only in the two instances above cited. Now if a resident plaintiff gains his suit, and the clerk does not, pending the suit, require and obtain security of him, how can he be made liable, either by common or statute law %
    
    2. If the bank is liable for costs at all, can an execution issue against her, unless a judgment for costs has been first rendered % An execution is a writ which is created by statute ; it must issue in the manner prescribed by statute; and must be regulated by statute in all its operations. In How. & Hutch. 627, sec. 1,'it is enacted that all persons who may recover anyffiebt, damages or costs by the judgment of any court of record in this state, may prosecute writs of fieri facias, &c. Under this act it is perfectly clear that a fi. fa. for any purpose cannot emanate, unless it is predicated upon the judgment of a court of record.
    In How. &. Hutch. 318, sec. 11, it is enacted that the clerks of the several courts respectively, when suits are determined and the fees not paid by the party from whom they are due, may make out execution directed to the sheriff, who shall execute and return it as in other cases. This is a general statute, applicable alike to all the courts of record, and the construction must be uniform and general in its application. It is a part o.f the revised code, and must be construed so as to conform to other acts existing at the same time. In the revised code it is provided that the party losing the case shall pay costs. Of course an execution would issue for costs against the party losing the case, and against none other. From “whom would .the fees be due ” 1 From the party losing the case. Again, in the revised code it is provided that all persons who may recover judgment for debt, damages, or costs, may prosecute execution. Of course, execution would issue for costs against the party losing the case, and against none other. From “ whom would the fees be due ” 1 From the party losing the case. The same reasoning applies to this statute. It says, “ When suits are determined, and the fees not paid by the party from whom they are due,” &c. When a suit is determined, there is a judgment, and of course the fees would be due from the party losing the case, and against whom the judgment had been rendered. If he fails to pay them when the suit is determined, then under this act the clerk would issue an execution against him, because he is the party from Avhom the fees are due. These are the only two statutes on the subject of issuing executions for costs, and under Avhich the officers of court claim the right to issue their executions in this case; and it is manifest that an execution cannot issue under either of these statutes, unless there is a judgment for it to issue upon.
   Per Curiam.

A motion was made to dismiss the appeal in this case, and it was submitted also on its merits. It is not necessary to determine the motion, as the appellants have no merits. Executions had issued against the Bank of Port Gibson for costs due the officers. The bank had judgments against the same officers, and on application the court ordered a satisfaction of the execution for costs to be entered, and the amounts credited on the judgments in favor of the bank. From this N. McDongall and N. L. Baldin appealed, claiming to be assignees of the officers, and,|by virtue of the assignment, to be entitled to recover the costs to the exclusion of the bank; but their assignment is not made a part of the record by bill of exceptions; indeed no bill of exceptions was taken, nor does it appear that the assignment was offered in evidence to the court below, so that they show no interest in the matter, which can be regarded as part of the record, even if they were entitled to make themselves parties, which is not admitted. It is however unnecessary to decide that point. No error in the judgment has been shown, and we must therefore presume that it was correct.

Judgment affirmed.  