State v. Dail , 50 Tenn. 272 ( 1871 )

Sneed, J.,

delivered the opinion of the Court.

The collector of the public revenue, who is in default in the discharge of his ditties, and whose default has made it necessary for a motion to be made against him in behalf of the State, can not be excused from the payment of the costs of said motion by showing that between the service of the notice and the hearing of the motion, he has made his settlement and received his acquittance from the Comptroller. The service of the notice in such case, from the Attorney General, must be considered in the nature of the .service of a leading process and the beginning of a suit, and not a private paper, as it would be, as between individuals: vide 11 Hum., 304. The proceeding has been rendered necessary by the officer’s delinquency; and his default is confessed by the payment made after the notice. The liability to the motion accrued the moment of the default; and if the proper officer has instituted the appropriate proceeding for its enforcement, the costs must follow. In this case, the defendant was in default, and after notice, and before the motion, he paid over the amount. In such •case, the State was entitled to a judgment for full costs.

The judgment of the court below will be reversed, and judgment will be entered here for the costs against the defendants.