
    The State vs. Allison.
    Costs. Motion. A motion against a sheriff, for an “ insufficient return,” is, in substance, or legal effect, a suit or action, and hence, in such a proceeding, the clerk should include in the bill of costs, the state tax provided by the act of 1848, ch. 161, § 10.
    Tin's was a motion to correct tbe taxation of costs, in tlie circuit court for Smith county. At the November Term, 1852, Goodall, Judge, presiding, there was judgment on the motion for the defendant, and the Attorney General, BbieN, in behalf of the State, appealed in error.
    ATTORNEY GENERAL, for tile State.
    J. B. Mooes, for defendant in error.
   McKinney, J.,

delivered the opinion of the court.

This was a motion to correct the taxation of costs; and the simple question is, whether or not, in taxing the costs, in the case of a judgment, by motion against a sheriff, for an insufficient return ” . of an execution, under the act of 1836, ch. 19, § 6, the State tax can be included?

The act of 1848, ch. 161, § 10, imposes a tax of three dollars and fifty cents, on each sidt in the circuit court; and we perceive no reason ivhy a proceeding by motion, should be exempted from this tax.

It has been repeatedly held, that this summary remedy, given by statute, is a substitute for the common law action on the case; and that it is, in substance and legal effect, a suit, or action; 6 Humph., 332-335. In this view, the cleric properly included the State tax in the bill of costs; and in ordering that item to be struck out, tlie court erred.

The judgment will be reversed; and judgment rendered here for the amount of said tax.  