The court reserved the question of law upon which the exception is taken, and submitted the facts to the jury, who 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 prosecution of the suit, as required by statute. The writ was returned to Spring Term, 1858, and at Spring Term, 1859, the county trustee was permitted by the court to file a prosecution bond in the cause. *Page 411
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. (534) The question depends upon the construction of our statutes. "In allactions whatsoever the party in whose favor judgment shall be given, etc., 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, beforeissuing the same, shall take bond with sufficient security of the personsuing, conditioned that he will prosecute," etc. 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 $200."
The words of the statute are as broad as they can be, and although we consider this a "hard case," 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. But Mr. 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 Blackstone, 397, where it is said: "The King, orone 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 (535) 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 miseriacordia, 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 *Page 412 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 Hen. VIII, ch. 8, was passed, which enacts that one suing for the use of the King shall not be liable for costs. This statute is not reenacted 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. Affirmed.