
    
      Clara Rowell, administratrix, v. Edward Mulligan et. al.
    
    In a suggestion of a breach of the Sheriff’s bond, the officers of the Court are entitled to have their usual costs taxed.
    The Attorney is entitled to two dollars for the rale necessary in a suggestion of a breach of the Sheriff’s bond, but to nothing ffir notice.
    The Clerk is not entitled to tax costs for a rule or for notice, in a suggestion of a breach of the Sheriff’s bond.
    
      Before Mr. Justice Richardson, at Gillisonville, Spring Term, 1847.
    This was a motion to reform the Clerk’s taxation of costs in a suggestion of a further breach of the official bond of Sheriff Mulligan. The object of the motion was, to raise for adjudication by the Court of Appeals, the question, whether, in suggestions of this kind, against a sheriff and his sureties, the plaintiff is entitled to tax any, and (if any) what costs. Regarding each suggestion against the sheriff and his sureties as a new action against them, the Circuit Judge decided that the plaintiff is entitled to have his usual costs taxed, but expressed no opinion as to the items of the bill of costs as taxed by the clerk in this case.
    
      Vide the bill of costs annexed.
    Attorney’s Costs.
    
    Notice 400
    Suggestion 4 00
    Argument - 5 00
    6 Subpoenas - 6 00
    Jury 1 00 — $20 00
    
      
      Cleric's Costs.
    
    Notice, 50 c.; Suggestions and Rule, 75 c 1 25
    Plea, 25 cents ; 8 Subpoenas, $4 00 4 25
    Docketing twice .... 25
    Attendance on trial, ... 50
    Entering Verdict - 25
    Affidavit for continuance 25
    Enrolling Judgment, ... 75
    Recording proceedings, 1 50
    Satisfaction - - 25
    Filing Replication or Similiter 25 — $9 25
    
      Coroner's Costs.
    
    Service of notices on parties - - 10 50
    Serving Subpoenas ... 4 50 — $15 00
    
      Sheriff's Costs.
    
    Service of Subpoenas - - - 4 50
    Witnesses..... 60 50-$65 00
    The defendants appealed and moved to reverse his Hon- or’s decision, on the following grounds:
    That his Honor erred in allowing the plaintiff to tax any costs, as by the Act of 1827, costs are not provided for in cases of suggestions, and no costs are allowed by law, except such as are provided for by that Act.
    Colcocic, Martin, for the motion.
    Singellton, contra.
    
    The State of South Carolina, for the benefit of some plaintiff, having already obtained and entered up judgment against the defendants, Clara Rowell, administratrix of David Rowell, filed her suggestion in due form of law, under the rule laid down by the Court of Appeals, in the case of Treasurers v. Bates, (2 Bailey, 362,) against the defendants, for a breach of the official bond of Edward Mulligan, sheriff. The jury assessed damages to Clara Rowell, the party in interest, (whom I shall hereafter, for convenience, call the plaintiff,) ai d the Clerk taxed costs to the plaintiff for the rule to plead, served on the defendants, the suggestion, and the usual costs for all cases tried in Court. The defendants contended that they were not liable for costs, and moved his-Honor, the presiding Judge, to have the Clerk's taxation reformed. The motion was refused and the defendants appealed.
    I apprehend that the question cannot be seriously made, so far as relates to those items of costs specified in the Acts of Assembly of 1827 and 1839, (the former prescribing the Attorney’s costs, and the latter those of the Clerk and Sheriff;) and of the Act of 1791, which allows to each witness, (see also Bratton v. Clendenin, Harper, 454,) so much per day; and to the Coroner “the same fees as are payable to the Sheriff for the same services.” Those Acts evidently contemplate the necessary expenses to which one is put in the prosecution or defence of his suit, and allow so much for services rendered by the officers of Court.— They have reference only to the services rendered, and none whatever to the nature of the proceedings had. I conceive, therefore, that the Court cannot, without overriding those statutes, refuse to allow these costs. The-form of the proceedings is prescribed by the Court, it is true, and not by statute ; but this cannot change the rights of the parties nor the nature of the services for which costs are allowed. But the questiou is already settled in this State, and it is needless to argue it. Beyond doubt, this is an issue which the plaintiff was entitled to make up-as a matter of legal right, and costs follow the result of the case. See Baker, Johnson <$• Co. v- Bushwell, 2 Mc-Mullan, 21, and Leslie Calhoun v- Taggart, lb. 71, for the principle. It is true, the Court in these cases refused costs as against the sureties on the respective bonds; but that was because the costs of the proceedings had formed no part of the condition of the bonds entered into by the sureties, and because they were not, and could not be, made parties to the proceedings. Had the sureties been sued on their bonds and judgment obtained against them, it would have been otherwise.
    The only question in the case, is whether the plaintiff, or party in interest, is entitled to costs for the suggestion and the rule to plead. The doubt in settling this question avises from the fact, that no statute says any thing about costs for these proceedings by name. I think, however, that so far as relates to the suggestion, the conclusion is inevitable, that- the plaintiff is entitled to costs either by the general terms of the statutes relating thereto, or by decided cases. For declarations, the statute allows certain, costs. Now, I hold that each suggestion is for a separate cause of action, which must be declared upon in the suggestion ; for although a judgment on the Sheriff’s bond must first be entered, before proceedings by suggestion can be had, the causes of action of the judgment and the suggestion are different from, and independent of, each other, and may be of very different natures. Indeed, if the causes of action were not different, a former recovery might be successfully pleaded to every suggestion filed on such judgment. But besides this, since Bates’ case, I take it, that after judgment on the Sheriff’s bond, suit by suggestion ■ is the only proper mode of proceeding against the Sheriff and his sureties, whether the nature of the suit be debt or case; and if costs were not allowed for the suggestion, the Court, by ordering this mode of proceeding, would be defeating the object of the statutes in relation to costs, and the rights of the parties under and by those statutes, by refusing, to allow the same costs ior the same services contemplated by the statutes.
    But I go further, and say, that a suggestion is in spirit and in fact a declaration. What is a declaration ? It is a legal specification on record, of a cause of action by a plaintiff against a defendant. What more or less than this is a suggestion 1 It is the same thing, only going a step further and pointing to a judgment already obtained against the defendants ; and pointing to the judgment only to show that the plaintiff has the right to come into Court by a specification of his cause of action in this form. In this view of the case, costs for the suggestion are specified in the statutes, and should be allowed.
    If, however, the Court should think a suggestion is not, in legal contemplation, a declaration, and that costs cannot be allowed upon that ground, we have the aid of decided cases, which we will here avail ourselves of, to show that the plaintiff is nevertheless entitled to costs for the suggestion. In 2 Tidd, page 946, it. is deduced, from cases decided in the English Courts, that costs are sometimes given, though they are not particularly mentioned in the statute on which the case arises ; and to establish this, are cited, amongst others, the cases of Cresswell v. Haughlon, (6-Durnford & East, 355,) and Greetliam v. the Inhabitants of the Hundred of Heate, (3 Burrows, 1723.) 1 quote these cases to show, that a liberal construction is always given, by the English Courts, to the statutes respecting costs, and that when in justice they ought to be allowed, they are given by the Court; and for the further purpose of applying the case in Burrows to this case, with the view of claiming what the Court there terms reciprocal costs ; by which I understand, that though a party defendant is not entitled to costs by statute if he should defeat a suit brought against him, yet, the Court will allow him costs, where, if the plaintiff had been successful in the same case, he would have been entitled to costs. And I argue, that if the position of the parties be changed, the rule will apply with equal force to the plaintiff. Now, since the decision in the case of the Treasurers v. McKie, (1 Nott & McCord, 575,) the fact that the defendants in this suit would have been entitled to costs from Mrs. Rowell, had they defeated the suit, is not only settled, but they might have compelled her to enter into an agreement to pay costs in the event of the failure of her case, and the Court would have staid proceedings at any time before judgment, until such agreement should have been entered into. Whether'the defendants make the requisition or not cannot change the principle. It is certain they had the’ right to do so, and the neglect to enforce their rights cannot defeat the rights of the plaintiff.
    But from the rules on this subject, established by our own Courts, I do not think the Court can refuse to allow the plaintiff costs for the suggestion and other proceedings in this case. In Clifton v. Phillips, (I McCord, 469,) the Court gave costs when no damages were given, because the'action was not '■'■frivolous and paltry,” hut to effect, an important object. In Kirkly v Nolly, (1 Hill, 398,) it was held, that the party recovering was entitled to “ actual expenses, necessarily incurred in the prosecution of his case,” because he would have been entitled at common law to reimbursement of these expenses; therefore, the expenses of witnesses examined before Commissioners, and of the Commissioners themselves, were allowed to be taxed as costs, although no provision was made by statute for such case. Thorn v. administrators of Denson, (1 Spears, 29,) sanctions and confirms this latter case. Now the suit before the Court was not frivolous, and paltry, as is shown by the assessment of the jury; it was to effect the just rights of the administratrix of Rowell in the only way she could effect them, and the expenses incurred were necessary in the prosecution of her case, and therefore, the Court is bound, by the principles on which its own rules are founded, to allow costs on the suggestion as for a decla-claration, to be taxed to her.
    The foregoing argument will also apply to expenses necessarily incurred for the rule to plead.
    We, however, have something more to say as to the expenses incurred for the rule to plead. By Bates’s case, a thirty rule is made necessary. Leaving out of the question, the fact, that plaintiffs generally cannot reasonably be presumed to know anything about the form of proceedings in cases like the one before the-Courl, and that they, therefore, necessarily submit the whole matter to an Attorney, who cannot be expected to render gratuitous services, let us enquire, what is the nature of this rule'? Whence it should issue ? And who should serve it *?
    1. As to the nature of the rule. It is, as I conceive, a legal proceeding, in the nature of a writ, and may, in some degree, be considered as the substitute for a writ. As a writ is the commencement of a suit and notice to a defendant, so is a rule to plead. The only difference is this, to wit: in the case of an original action, the writ must be served and imparlance given the defendaut before declaration filed ; whereas, in this proceeding, the suggestion should be first filed,- and then the rule to plead served on the defendant. But, nevertheless, as a writ is the commencement of a suit and notice to defendant, so is a rule to plead ; and damages on a suggestion can no more be assessed by a jury until service of a rule, than could a judgment be obtained in an original action without the previous service of a writ. The service of the rule is the pre-requisite to the assessment of damages. Suppose, that after suggestion filed, the defendants should remove from and reside without the State, no rule to plead having been served upon them, could the plaintiff have damages assessed on the suggestion? I presume not — and if the action were joint, and only one or two of the defendants had removed, the suggestion would fail. In this view of the case, the rule to plead, and not the suggestion, should be regarded as the commencement of the suit. To say that the suggestion was, would be to say that a suit might have a legal beginning which could have no legal end— and this would be absurd. In this point of view then, as "well as in the value of the , services rendered, the rule to plead assimilates and is analogous to a writ, and the plaintiff ought to be allowed to tax costs as fora writ.
    
      2. Whence should the rule issue? I hold, that when the Court requires a notice to be given or a rule to be •served, it means that the notice or rule shall issue from the Court in due form, and with all necessary evidence of its authenticity. Its regulations as to proceedings issuing from the Court, to command respect, must bear the impress ■of the Court, and should have regard only to those matters of which it properly has the control, and which it can enforce. It would be derogating from the dignity of the Court to suppose it would command a thing to be done, the ■doing of which it could not sanction by it authority. It ■would not do to hold, that when the Court requires a notice to be given or a rule to be served, as a part of its proceedings, it means the notice or rule to issue from an irresponsible citizen of the State, unconnected with the Court, and over whom it has no control; nor would it be proper to presume that the Court would require unrequited service of one of whom it had no legal right to require any service at all. It is true, the Court does say, in establishing this mode of proceeding, “ that any one who may conceive himself aggrieved,” (fee. “ and would have the right to come in and suggest,” (fee; “and upon serving a thirty day rule,” (fee; but it cannot be argued, from this mode of speech, that the Court meant to say that “ any one who may conceive himself aggrieved” should, in person, issue and serve the rule himself. If it meant this, it meant also, that any “ oue.-aggrieved,” should, in person, write out his own suggestion and conduct his own case, for the language will apply as well to the suggestion as to the rule to plead. But it is the usual mode of speech applied to both plaintiffs and defendants touching their duty in regard to all proceedings in Court, and argues nothing. If I am right in this position, then the original rule to plead in this case was properly issued from the Court and signed by the Clerk; for which service, he is entitled to costs from Mrs. Rowell, and therefore, she ought to be allowed to have them taxed to her.
    3. Who should serve the rule? I hold, again, that when the Court requires a paper to be served, in a legal proceeding in Court, the requisition should be regarded as being made of the officers whom the Court alone has the right to command, and whose duty it is to serve papers issuing from the Court —such as the Sheriff and the Coroner. The same argument will apply in this place that is used above, in regard to the issuing of the rule. I know the reply to this will be that Mrs. Rowell, for whose benefit the suit is brought, was interested to have the rule served, and that therefore she ought to have had it served, or have served it herself. The same reply may, with equal force and propriety, be made to an argument for costs in every suit in Court. But why should she have been required to do this ? The reasons for allowing costs in all other cases apply in this case — her money was withheld from her by those who owed and should have paid it. She was driven to suit by the refusal of the defendants to pay the money, due by them, to the estate she represents. She was thus compelled to incur costs. The defendants might have saved her the necessity of incurring costs, by paying the debt. Had she not incurred costs, by pushing her rights and duty, she would have lost the debt due the estate she represents, and that too by the fault of the defendants.
    But, again — what certainty would there be in the enforcement of the mandates of the Court, unless the officers of the Court are made to execute those mandates? Suppose from age, bodily infirmity, and poverty, a party interested to bring suit against the Sheriff and his sureties to enforce his just rights, should neither be able to serve the rule to plead himself, nor procure it to be done with his own means — would there be any certainty in the faithful and proper administration of justice, unless the public officers of the law were in duty bound to serve the process issuing from the Court?— Surely not. And when they do serve such process, are they not of right entitled to costs from the plaintiff or defendant according to the event of the suit ?
    But leaving these arguments to their chances of success, I will submit to the Court the following point of law, to wit: Could Mrs. Rowell legally have served the rule to plead in this case? It has been long since settled that a Sheriff cannot, even by his deputy, serve a paper in a case where he is only a nominal party. See May v. Walter, (2 McCord, 470.) It is true that, in this case, the decision of the Court is founded upon the Act of Assembly of 1706, prescribing that, in cases where the Marshall is either plaintiff or defendant, the Coroner shall serve and execute all such papers as are against him and in his favor — in other words, that wherever the Sheriff is interested in a proceeding in Court, the Coroner is substituted in his place. But the Court goes beyond the Act, and says “that by the rules of the common law,” «fee. “ the service of the writ by the Sheriff is void.” From this I take it, that if the Act of 1706 had never been passed, the rule would still have been the same. The reason, I presume, is that the Sheriff was responsible for costs — was, therefore, an interested party, and could not prove the service of the paper. The case now before the Court is, certainly, in this point of view, a strong case. Mrs. Rowell, might not only have been made responsible for costs had she failed in her suit, but she was directly interested in the event of the suit, as one of the distributees of her husband’s estate. Suppose the defendants had chosen to deny the service of the rule to plead, and had made a motion to set aside the finding of the jury, and vacate the proceedings, alleging that the rule to plead had not been served on them — could Mrs. Rowell’s oath, had she served that paper, have been taken to prove the service ? I presume not. This would be making her a witness in her own case, which is contrary to law. tier own safety, then, as well as the ends of justice, would require that some other person should serve the rule to plead; and whether that person were a public officer or a private agent, employed and paid by her, matters not. She would, in either case, be entitled to her costs, for the service of the notice, under the rule established in Kirldy v. Nolly.
    
   Withers, J.

delivered the opinion of the Court.

The first question is whether upon suggestion filed,issue joined, trial and verdict, after recovery upon a sheriff’s official bond, tax costs are recoverable by the officers of Court.

The case of the Treasurer v. Bates et al. 2 Bailey, 362, prescribed the practice proper to be pursued, where sundry breaches of the sheriff’s bond were alledged by various persons. An action, it was ruled, should be brought in the name of the obligee of the bond, and upon the fact being established, judgment should be entered for the penalty; such judgment should stand asa security for any prior or subsequent breach of the bond, “and that any one who may conceive himself aggrieved by the misconduct of the sheriff, should have the right to come in and suggest the breach of the bond of which he complains, and pray execution for his damages ; and upon serving a thirty day rule” requiring plea to the suggestion, “may, for default of plea, or upon issue joined, have his damages assessed by a jury, and have execution .for the penalty to enforce the payment of the damages assessed.”

In such proceeding, to which the case before us conforms, issues by regular steps of pleading, are made up as matter of right, and a trial follows in regular form. Iu such case, according to Todd v. Stroud, (1 Rich. 25,) the party prevailing is entitled to costs. It was considered in the case cited that a suggestion well supplied the place of a declaration in an ordinary case; nor is any good reason now perceived to dispute that proposition ; undoubtedly every other step in the litigation is, ep nomine, known to our fee bills of 1827 and 1839, This yiew leaves entirely untouched the position that costs are the creatures of statute, except only in cases where the court may require in advance that a party shall agree to become bound for th,e costs on a contingency stipulated. We cannot avoid thigf conclusion, although it was set down as a recommendation of the rule of practice prescribed in the Treasurer v. Bates, that a multiplicity of suits might be avoided. It is somer thing if the number can be reduced, or the expense of any diminished. If, for this end, a resort to Equity may appear more efficacious, those interested will act accordingly.

It follows that it was proper to tax costs in the ,cas,e before us.

The other question relates to the legality of the several items that appear upon the brief.

By a careful examination of the fee bill of 1S39, the clerk appears to be entitled to each of the items embraced in the charges made in this case on his behalf, expe.pt ‘‘Notice 50 cents.” Each item taxed for the attorney is legitimate, according to the Act of 1827, except the said item set down as “Notice $4.” A “Rule” is required to be served, as we have seen. For this, by the Act of 1827, the attorney is entitled to only $2. And for the clerk there does not appear to be any ite.m of cost for the rule required in this case. Indeed it is supposed that it is to be issued by the attorney for the complainant, and served by the sheriff,

The taxation is ordered to be reformed by reducing the item allowed to the attorney,-for notice, to two dollars instead of four, and that this charge be entered for rule, and striking out fifty cents allowed to the clerk for notice.

I think it is doubtful, however, whether the charge of 25 cents,” for satisfaction, is not at least premature, and I believe it is quite usual for the clerks to tax this item in the outset, in all cases. Now suppose the defendant never pays the debt or costs, and the plaintiff pays the latter, in .such case the service of entering satisfaction is never performed. It seems to my mind clear, that ,jt would be wrong to require the plaintiff to pay that item i.n the .case supposed. The same remark would apply to a case in which the defendant might make only a partial payment. These observations are made out of caution, that we may not be committed upon the subject to which they relate. They may not be applicable to the particular case before us.

The Circuit Judge determined only that costs were to be taxed, as of right, and holding him to be correct in this, the motion is dismissed.

Richardson, J. Evans, J. Wardlaw, J. and Frost, J. concurred.

Motion dismissed.  