State v. Robinson ( 1835 )

Catron, C. J.

delivered the opinion of the court.

William Right, together with fourteen sureties, were bound by recognizance, for his appearance at the Cocke circuit court, to answer the State upon a charge of passing counterfeit money. The defendant did not appear, and a forfeiture was taken against him and the bail, and judgment was entered up, that the State recovered from Right one thousand dollars, and two hundred and fifty dollars from each of the bail, unless sufficient cause to the contrary should be shown at the next term. A joint scire facias was read and made known to the bail. At the return term they appeared, and moved the court to set aside the forfeiture, when, ’ “by consent" of the attorney general, and with the leave of the court, the forfeitures entered in this cause are set aside, and the defendants, by their attorney, assume the costs. It is therefore considered by the court, that the State of Tennessee recover'of them the costs in this behalf expended,” the record informs us.

The clerk taxed each defendant with a fee of five dollars to the attorney for the State. The defendants moved to have corrected the taxation, and only one fee charged. The court so ordered; from which an appeal in error was prosecuted to this court. ' .

The act of 1815 proceeds, “that in all prosecutions in behalf of the State, where, by the judgment of the court, the defendant is ordered to pay costs, the attorney for the State shall receive the sum of five dollars, to be taxed in the bill of costs.”

This suit, by scire facias, is a prosecution in behalf of the State, and the solicitor entitled.^ according to the opinion of this court, in the State vs. Fields, (Mart. and Yerg. Rep. 177,) but in this eause there is only one writ . of scire facias, which is in the nature of a declaration on the recognizance, and a judgment thereon, although it might be several in its character, is given in one suit, and only five' dollars receivable by the solicitor, the same as if -a common law suit had been brought in the name of the State against the defendants jointly. The judgment must therefore be affirmed.

Judgment affirmed.