
    Thomas Barksdale vs. J. Morrison.
    Underlie act of 1783, allowing magistrates double costs, in any action, suit, bill, plaint or information, commenced or prosecuted against them, they may recover double courts in a qui tarn action brought against them.
    A notice was served by J. B. Legare on Holmes & Waring, that a motion would be- made befare W. S. Smith Proíhdnotary of Charleston, to tax a bill oFcosts in this case. On the day appointed Mr. Legare, defendants counsel, moved to tax a bill of double costs, upon the ground, that this was an action brought against a magistrate. •
    To this, it was objected, on behalf of the plaintiff; 1st; that no costs ought to be taxed, because the action was qui torn,', 2nd that if any costs be allowed, double costs ought not to be, because this was not a case contemplated by thé act of assembly.
    These objections were overruled by the prothonotary, •and the bill for double costs was taxed accordingly.
    On an appeal to Mr. Justice Huger, the prothohota» ry’s decision was confirmed;
    An appeal was now made from his decision on the grounds:
    1st. That no costs ought to be taxed for defendant in a qui tam action:
    2nd. The defendant was not entitled tó double costs, because the' action was not «brought against him for any matter, cause or thing by him done in performance' of his office.
    
      Argued, 2d. March 1825.
    
      Isaac E. Holmes, for the'motion;
    No costs are allowed in qui tam actions. (2 Bac. Ah: 50. Tit. Costs.) If one party is not entitled to costs the other is riot. (2 Com. Dig. 243-8. Tit. Costs.) The plaintiff in a qui tam is not entitled to-costs. (Í Vent. 133.1 Salk 206. Cro. Car. 542.) The statute of 8 Eliz: c. 5 allows costs in qui tarn, which is not of force here. ( O’Driscoll vs. M‘ Cants, 2 Bay, 323.)
    
    
      J. B. Legare, contra.
    The act of 1733, (1 Brev. 462. Pub. L. 135,) says, “ In any action, suit, bill, plaint or information against a magistrate, he shall have double costs. (2 Bac. 495, Costs. 1 Doug. 294-5. 1 Term. Rep. 252.
   Nott, J.

It is not necessary to resort to English authorities to enable us to determine the first question made in this case, it depends upon the construction of our qwb act of 1733, which allows magistrates double costs “hi any action, suit, bill, plaint, or information which shall be commenced or prosecuted against them, wherein the plaintiff shall be non-suited, or verdict shall pass for the defendant;” (P. L. 135,) Admitting, therefore, that costs are not allowed by the english law (or were not before Statute 8 Eliz; Cv 5. which is not of force here,) in qui tarn, actions, it is obvious that it was the intention of the legislature to embrace cases of that description in this act. The act was to protect public officers from groundless and vexatious actions and prosecutions; and i think the words of the act sufficiently broad to effect the object. The act under which the defendant was prosecuted authorizes the penalty to be recovered.by “ bill or plaint, only;” the very words used in the act under consideration, as descriptive of the actions or prosecutions in w'hich the double costs should be allowed.

The second ground is, .that the defendant was not sued for any thing done in pursuance of his office. But by a reference to the record, it will be found that he was charged with having sat on a certain trial in the capacity of a magistrate having omitted to sign-the roll as required by law; (P.' Id. 301.) Omitting to sign the roll did not effect his qualification as magistrate. He was not less subject to the immunities and privilegés of a public officer on that ground. The act itself recognizes him as such. He was, therefore, sued for an act literally done in pursuance of his office as a justice of the peace. The court are of opinion that the costs are properly taxed and that this motion must be be dismissed*.

I. IS. Holmes for the motion,

J. B. Legare, contra.  