Gray v. Alexander , 26 Tenn. 16 ( 1846 )

Turley, J.

delivered the opinion of the court.

George Gray was a witness in a suit of Lorenzo D. Alexander against James Gray, Jr., summoned on the part of James Gray. He proved his attendance, which upon the termination of the suit was taxed in the bill of costs against L. D. Alexander, and by him paid to George Gray. At a subsequent term of the court Alexander moved the court to correct the taxation of the bill of cost, and exclude therefrom the amount charged for the attendance of George Gray, upon the ground, that at the time of his attendance he was an incompetent witness, being-security for the appeal from the justice. This correction was made by the court, and thereupon Alexander commenced this suit, by warrant before a justice, against the witness, George Gray, to recover back the amount paid him on the judgment for cost as a witness, and has so prosecuted his suit as to obtain a judgment therefor in the Circuit Court; to reverse which, this writ of error is prosecuted.

The judgment of the Circuit Courtis erroneous and must be reversed; because, .

1st. It does not follow, that because the witness was incompetent, by reason of his being security for the appeal, that he was not examined, for he might not have been objected to on that ground, and if he had been, he might have been released and other security given in his stead; and, therefore, as far as this court can judge from the record, the motion to correct the taxation of the bill of cost came too late.

2d. But if the correction of the taxation of the bill of cost was legally made, still this action cannot be maintained against the witness, because the money was not paid upon a judgment rendered in his favor, but upon one rendered in favor of James Gray, Jr. If the plaintiff, Alexander, had paid money by mistake, which he has a right to recover back by suit, his action should have been against James Gray, Jr., in whose name the money was collected, and who in contemplation of law received the same, because he was bound to pay his own witnesses and other cost, and recovered his judgment to indemnify him therefor.

The judgment of the Circuit Court is, therefore, reversed, and the case remanded for a new trial.