delivered the opinion of the court.
Thomas L. W. Sawyers was indicted in the Circuit Court of Claiborne county, for a felonious assault, and the plaintiff in error was prosecutor. Sawyers was acquitted, and amotion was made to tax the prosecutor with the costs. The court discharged the motion to tax the prosecutor with the costs generally, but because it appeared to the court that several witnesses who had been summoned for the State, knew nothing about the case, his Honor ordered and adjudged that the prosecutor should pay the costs of said witnesses. From this judgment Hansard appealed to this court.
A prosecutor is no party to a cause, and is not liable for costs in any case, except as that liability may have been created by statute. The act of 1794, ch. 1, sec. 76, and 1807, ch.24, sec. 1, provide that if the defendant shall be acquitted, and the court shall be of opinion that the prosecution was malicious or frivolous, it may tax the prosecutor with the costs. The only case in which the prosecutor can be taxed with costs, is that specified in these two acts, namely, where the prosecution is *117malicious or frivolous. Butin this case, the court adjudged that the prosecution was not frivolous or malicious, so as to justify a judgment against the prosecutor under these acts. But for a reason not mentioned in either of these statutes, the prosecutor is adjudged to pay part of the costs. This we think the court had no power to do.
Let the judgment be reversed.