King v. Wooten, 52 N.C. 533, 7 Jones 533 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 533, 7 Jones 533

R. W. KING v. JOHN C. WOOTEN.

•A suit by a county trustee, suing upon a sheriff’s official bond, as relator in the name of the State, is within the meaning of the act, Kev. Code, chap. 31st, sec. 40, requiring clerks to take prosecution bonds before issuing leading process; and a clerk failing to take such bond in such suit, is liable to the penalty of two hundred dollars imposed by Statute, Kev. Code, chap. •31, sec. 42.

This was an action of debt, for the penalty of two hundred -dollars, brought against the defendant as clerk of Lenoir Superior Court, for issuing a writ without taking a prosecution ■bond, and tried before Howard, J., at Spring Term, 1860, of ■Jones Superior Court.

The Court reserved the question of law upon which the ex•ception is taken, and submitted the facts to the jury, wbo found that the defendant issued a writ in November, 1857, against the plaintiff and his sureties upon his bond as sheriff, in the name of the 'State, on the relation of the county trustee of Lenoir county, and failed to take a bond for the prose■■cution of the suit, as required by statute. The writ was returned to the spring term, 1858, and at the spring term, 1859, the 'county trustee was permitted by the Court to file a prosecution bond in the cause.

Upon the question reserved, the Court, being of opinion that the county trustee, suing upon the bond of the sheriff, in the name of the State, was required by the statute to give bond for the prosecution, gave judgment for the plaintiff. From which judgment the defendant appealed.

St&venson and McRae, for the plaintiff.

J. H. Bryan and Strong, for the defendant.

Peakson, O. J.

The question depends upon the construction of our statutes. “ In all actions whatsoever, the party in whose favor judgment shall be given, &c., shall be entitled to full costs;” Rev. Code, ch. 31, sec. 75.

“ No writ or other leading process, returnable to any court of record shall be granted or issued by the clerk or his deputy, but under the following rules, to wit: The clerk by himself or his deputy, before issuing the same, shall take bond with sufficient security of the person suing, conditioned that he will prosecute, &c.,” ch. 31, sec. 40.

“ If any clerk by himself or deputy, shall issue any writ or other leading process, otherwise than as by the two preceding sections directed, he shall pay to the defendant the sum of two hundred dollars.”

The words of the statute are as broad as they can be, and although we consider this a “hard ease,” we cannot avoid the conviction that it is embraced by the provisions of the statute. It is settled, that in suits on official bonds, the relator is the real plaintiff, or in the words of the statute “ the person suing,” from whom the clerk is required to take a prosecution bond. Put, Mi\ Bryan, on the part of the defendant, took this distinction : an individual suing as relator on a sheriff’s or constable’s bond, must give a prosecution bond, but the relator in this case, being the county trustee, sues for the use of the county, to recover the county funds, which are in effect the funds of the State; so that the suit is in fact a suit for the. use of the State, and he insisted that the State or one suing for the use of the State, is not liable for cost, and in support of his position, cited 3 Plackstone 397, where it is said “ The King or one suing for the use of the King, is not liable for costs.”

At common law, neither party to a suit was liable to the other for costs, but the Court imposed a fine on the party in fault, for false clamor in case of the plaintiff, or for resisting a just claim in case of the defendant, who was in miseriaoordia; which fine was a matter of substance, and was paid into the treasury of the King. By the act of Ed. I, the party in whose favor the principal judgment was rendered was also entitled to a judgment for his cost, after which the fine on the party against whom judgment was rendered, became merely nominal. In putting a construction on this statute, it was held that a suit in the name of the King was not embraced. But an individual suing for the use of the King, was held liable for cost, and therefore the statute 24 Elen. 8, chap. 8, was passed, which enacts that one suing for the use of the King, shall not be liable for costs. This statute is not re-enacted by our code, and its omission not only leaves the position of Mr. Bryan unsupported, but shows that there is nothing to restrict the general words of our statute, or to relieve the defendant from the penalty.

Per Curiam,

There is no error. Judgment affirmed.