Hewlett v. Nutt

• Decision Date: 30 June 1878
• Citation: 79 N.C. 263
• Court: North Carolina Supreme Court
• Parties: State on relation of ELIJAH HEWLETT v. HENRY NUTT.

79 N.C. 263

State on relation of ELIJAH HEWLETT

v.HENRY NUTT.

Supreme Court of North Carolina.

June Term, 1878.

CIVIL ACTION, tried at Spring Term, 1878, of NEW HANOVER Superior Court, before Eure, J.

This action was brought by the relator as treasurer of New Hanover county, against the defendant as surety upon the bond of one James C. Mann, clerk of said Court. It was alleged that said clerk had failed to account to plaintiff in a certain sum due as a tax on sundry judgments rendered in civil actions in said Court. The material allegations in the complaint were denied, and the defendant pleaded the statute of limitations. The case was subsequently referred for an account, and the referee reported, that Mann was clerk of said Court from August 1869 to September 1874, and as such, during that period, in eighty civil actions, he taxed in the bill of costs, and collected the sum of two dollars in each case, and the same was received by him for the county treasurer, but not paid over to him.

Upon the pleadings and the facts as found, the Court gave judgment for the defendant, and the plaintiff appealed.

Mr. D. L. Russell, for plaintiff .

Messrs. Merrimon, Fuller & Ashe, for defendant .

READE, J.

“On every indictment or civil suit * * * the parties convicted or cast shall pay a tax of one dollar, and in every suit in equity, a tax of two dollars” Rev. Code, ch. 28, § 4. By the same statute, “all fines, amercements, forfeitures and taxes on suits,” are appropriated for the purpose of defraying the costs of State prosecutions, and the contingent expenses of the county. And it is made the duty of the clerk to report all such taxes, fines, forfeitures and amercements, and to account and pay them over to the proper officer. Under this statute the clerk collected the amount of taxes on civil suits reported, and failed to account for or pay it over.

The defendant, who is surety for the clerk on his official bond, objects to paying the taxes on civil suits collected by the clerk:--

1. Because the statute under which he collected them had been repealed, so that he did not collect them by virtue or under color of his office, or by authority of law. The foundation for this defence is the general revenue act of 1858-'59, which repeals all taxes not therein imposed; and this being a tax on suits, it is repealed. This defence will not avail the defendant, because the tax on suits is not the kind of taxes embraced in that revenue act. Indeed it is not a tax at all in the sense that public taxes are understood. It is a part of the bill of costs taxed by the clerk to be paid by the unsuccessful party in every suit to pay the expenses of the Court, the aid of which he has wrongfully invoked at the public expense. The fact that it is called a tax makes no difference. Tax is a familiar and appropriate term in judicial proceedings. The fees of clerks, sheriffs, witneses, referees, lawyers, are all taxes upon the losing party, and are “taxed” by the clerk as the costs. The Court orders the costs to be taxed by the clerk, and to be paid as taxed. A motion to retax a bill of costs is common. The statute directs costs to be taxed by the clerk. “The prevailing party shall be entitled to recover the fees of referees and witnesses, and other necessary disbursements to be taxed according to law.” Bat. Rev., ch. 17, § 287. So an attorney's fee is taxed, and if an attorney take a larger “tax-fee” than allowed by law, he shall be indicted, &c. In the very case before us His Honor directed the plaintiff to pay the costs to be “taxed by the clerk.” And one of the definitions of “tax” in Webster is,--“to assess, fix, or determine judicially, as the amount of costs on actions in Court; as the Court taxes bills of costs.” We are of the opinion that the revenue act of 1858-'59, or any like act, does not embrace the tax in question on suits, unless specially mentioned.

2. The second ground of defence is that ...