The defendant in this motion, Richard Allen, had brought a suit and recovered against and one Summers, but was ordered to pay the costs of the attendance of certain witnesses, also the clerk's costs for issuing the subpoenas and the sheriff's for serving them, and the execution was ordered to issue therefor. The clerk having taxed these costs, issued a fieri facias against Allen, in the name of the clerk's office as plaintiff. At the return of this process the sheriff made an affidavit stating that he had not been able to find any property wherewith to satisfy this execution, and that the said Allen was insolvent, except as to a sum of money in his hands which had been raised on an execution in his favor against Summers.

On this affidavit it was moved that the sheriff apply so much (157) of the said money to the satisfaction of the fieri facias aforesaid as was sufficient for that purpose, which was ordered by the court, and the defendant in this motion appealed.

BATTLE, J.

The counsel for the defendant Allen, who was plaintiff in the court below in the suit of Allen v. Summers, contends that what purported to be a judgment rendered against him at Spring Term, 1859, was a nullity, (1) because it was partly in favor of witnesses not named, and (2) because it was partly in favor of the "clerk's office," which is not a person, either natural or artificial, but only "a place," and he concludes, as the judgment was a nullity, no execution could rightly be issued thereon.

The counsel contends further that the court had no right to order the payment of what was due to the officers of the court and witnesses (whose fees and attendance was charged to the plaintiff in that suit) out of the money collected for him by the sheriff on the execution against the defendant Summers.

We are clearly of opinion that both objections are untenable. What the counsel calls a judgment is not such an one as is given in favor of one of the parties in an adversary suit; but it is only an order, which every court has a right to make to enforce the taxing and payment of costs to the officers and witnesses. Each party is at all times liable to pay his own costs, and whenever it may be necessary such payment may be enforced by a rule upon him and an attachment thereon, or by the milder process of fieri facias. Merritt v. Merritt, 2 N.C. 20; Office v. Lockman, 12 N.C. 146; Office v. Taylor, ibid., 99; Clerk v. Wagner, 26 N.C. 131. The order in the present case is very much the same as those made in the cases referred to. The costs were, of course, to be ascertained by the clerk's taxation, and the name of the clerk's office was used as a mere formality, the substance of the order being that execution should issue to collect what the clerk should (158) find to be due to the officers and witnesses, whose fees the court had directed to be taxed against the plaintiff.

Upon the second point we have no doubt that the court had the power to appropriate the money in the sheriff's hands belonging to the plaintiff in the execution to the payment of his own costs, which he, under the order of the court, was bound to pay. We have seen that such payment might have been enforced by a rule and attachment, and it would be strange that the court, instead of resorting to that stringent remedy, should not have the power to take the party's money then in the custody of one of its officers and apply it, as the party himself ought to have done, under its order. That the court does possess such power seems to be settled both upon reason and authority. See Armistead v. Philpot, 1 Doug., 230; Turner v. Fendall, 1 Cranch, 117 (1 Curtis, 361).

PER CURIAM. Affirmed.

Cited: Blount v. Wright, 60 N.C. 91; Wood v. Wood, 61 N.C. 541; Clerk's Office v. Bank, 66 N.C. 216; Jackson v. Maultsby, 78 N.C. 176; Sheppard v. Bland, 87 N.C. 167; S. v. Wallin, 89 N.C. 580; Perkins v. Berry, 103 N.C. 143; Long v. Walker, 105 N.C. 97; Hinnant v. Wilder, 122 N.C. 153.