State v. Armstrong

¶1Armstrong entered into a recognizance for the appearance of a person indicted for an assault and battery. The defendant in the indictment made default, the recognizance was declared forfeited, and a scire facias was issued *43requiring Armstrong to show cause why execution should not issue against him. Previously to judgment on the scire facias, the person indicted was surrendered in discharge of his bail; and judgment was rendered, conformably to the statute, against Armstrong for the costs (1). The execution and fee bill, which issued against Armstrong, contained a charge of 5 dollars as a fee to the prosecuting attorney. The Circuit Court, on motion, struck that charge out of the fee bill.

¶2The statute regulating the fees of different officers, gives to the prosecuting attorney a fee of 5 dollars-for every conviction on an indictment, or presentment, and. a fee of 3 dollars on every unsuccessful application for a divorce. This statute gives, also, a fee of 2 dollars and 59 cents as an attorney’s fee in all civil actions at law, when the title to land does not come in question, and of 5 dollars when it does (2). The recognizance under consideration is an obligation of record, with a pecuniary penalty. The proceeding by scire facias against the recognizor, after the forfeiture of the recognizance, is to recover the penalty, and is entirely of a civil nature. The defendant in the scire facias, therefore, in becoming fixed for the costs, is liable to pay as an attorney’s fee, not 5 dollars due on a conviction by presentment or indictment, but 2 dollars and 59 cents, given to the successful party in every civil case.

¶3The Circuit Court were right in striking out the fee of 5 dollars, but they committed an error in not allowing the ,2 dollars and 59 cents.

¶4The judgment is reversed. Cause remanded, with instructions, &e.