Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1866-09-12

j. G. BREED, Clerk vs.. oARREN, sHUBouLr cROTH-
In this case it appears that Carren shubout and s.
Cothers brought their action in the Circuit Court Of Mont
and that the action successfully prosecuted TO nna JUG
At the time the suit was instituted the ordinary prosecution
bond executed with A Robb, dead and James &
Bailey security for COSTS execution issued the Judgment
which duly returned ndorsed No property found to
make the debt any part thereof whereupon the clerk the
plaintiff in this moved the for Judgment against
cuton bond for fees due him rendered
at the instance Of the plaintiffs in the original action The
circuit Judge allowed the notion and proceeded pronounce
Judgment for s. . against the plaintiff and James E. Bailey
and Mary T. Robb, executrx of A Robb, deceased from
peal in error to this court.
The rule Of the law that witnesses shall rendered
their fees before they bound 10 attend has been for many
years abrogated by statute State The law fixes
fixture, penalty Sis 90 and IiabiIiy TO such other
@ S az .he t OF the party summoning the witnesses
ner the oeers OF the court arebound perform the
required Of them by law for the compensation therein fixed
and without in advance such is the r nature
me when they assume the duties
and although the law imposes them but few duties for
which does not provide compensation they must in
instance when their fees cannot be collected from the
against whom the adudged look alone TO the
for whom and at whose instance the services yere
ports 49, 49, held, and the rule has been adhered 10
snce that witness might his action gaus
the party, and whose instance Summoned ba
end of every and that he bound to wait the
mnaon Of the cause in which he give his attendance as
witness But case of which aw are under our
practice has gone far to authorize Clerk TO
his fees by suit before termination of the canse in Sb
the services rendered ~
The practice has been the But it clear upon
principles of common law, well by statute Clerk
can, the unsuccessful party unable Judgment
against hto pay the fees DUE maintain his action AGAINST
the successful party at whose instance the services rem
dered By the Code section 3 he need resort to his
law remedy but he way enforce his right by notion
But neither at the law under the statute does
right of action motion lie against the surety in the prose-
cuton bond in actions at law The rule in courts of equity
IS Otherwise The costs in chancery not
at law fixed by express statutory provisions. but left
open TO be adjudged the Chancellor the of
nd Discretion may think just equitable
gard to the result Of the In such the for
undertakes with reference to this discretionary power Of
his subject to its exercise whether his
principal not Allison Stephens ct al Head
Isl.
But in actions statute Code section 97 pro-
ve that successful party in all civil actions entitled
to full costs otherwise directed by law for which udg
ment sha entered The judgment favor of the plain
tiff successful prosecution of the suit and compliance
undertakings of the surety for COSTS and he cannot
by motion otherwise, at law be held further LIABLE
The judgement Of the Circuit Court be reversed and
the motion the suries the prosecution bond daowed
MILLIGAN, Judge.
Attest ]. G.. FRAZER, Clerk.