RYLAND, J.
This was originally an action of assumpsit brought before a justice of the peace in St. Louis township, by the appellee, William Spain, for the use of A. P. Field, against the defendant, William S. McKniglit, for the sum of ninety dollars, for money and property levied upon by McKniglit, by virtue of an execution from the Criminal Court, in favor of the State of Missouri against said William Spain. From the record and proceedings below, we find the following facts : Spain was arrested by James McDon-ough, captain of the city watch, for grand larceny. McDonough found upon his person a one hundred dollar bank-note of the Bank of Missouri, and a gold watch. This watch and bank-note McDonough, at the time he arrested Spain, took from, and the same remained in the hands of the officers of the Criminal Court of St. Louis county until after Spain was indicted and convicted of the crime of grand larceny, and adjudged to pay the costs of the prosecution. An execution was issued by the clerk of the Criminal Court in favor of the State against the goods and chattels of said Spain, and William S. McKniglit, the marshal of said Criminal Court, levied said execution on the above property, that is, the bank-note and the gold watch, and returned on said execution that he had made by the sale of the same the amount of one hundred and sixty-one dollars, being fifteen dollars and fifty cents less than the costs. It also appears that Spain, shortly after his arrest, conveyed by bill of sale the above property, that is, the gold watch and hundred dollar bank bill, to A. P. Field, Esq., in order to employ him, said Field, as an attorney to defend said Spain on his trial for said grand larceny. It appears that said A. P. Field did defend said Spain on the trial, but Spain was found guilty, the jury stating in their verdict that the “ amount of money stolen was nine hundred and nine dollars and ninety-five cents.” It appears that Captain McDonough had no warrant against Spain at the time he arrested him, nevertheless he, a captain of the city watch, arrested Spain on a charge of grand larceny, Spain was indicted on the charge, was convicted and sentenced to the penitentiary for five years. In order to make the costs of this prosecution, an execution issued, and the property taken from Spain by McDonough was levied on by the marshal of the Criminal Court, the present appellant, and sold to make the costs. The sale of the property to Field was after the arrest and before the indictment.
The plaintiff Spain, to the use of Field, obtained judgment for ninety dollars and costs against the appellant McKniglit, before the justice of the peace; McKniglit appealed to the Circuit Court; there Spain again obtained judgment for $90 against McKniglit, and McKniglit moved for a new trial, which was overruled. He excepted to the opinion of the Circuit Court and brings the case to this court by appeal.
On the trial of the cause in the Circuit Court, evidence was excluded on the part of McKniglit, and instructions refused on his part which at the time were excepted to.by the defendant. It seems that after the defendant had given a copy of the record and proceedings from the Criminal Court of the case of the State of Missouri v. William Spain, indicted for grand larceny, in evidence, also a copy of the execution which had issued on the judgment of conviction for costs' in said case, so as to'show the indictment, conviction, judgment, execution for costs, levy and sale return made by marshal McKnight, the plaintiff moved the court to rule out from the evidence, the execution, indorsement and return, thereto, because the same was void, which motion the court sustained — declared the execution void, and ruled out the same, and the return and indorsement'from before the jui-y as any evidence. To this judgment of the court the defendant excepted.
After this evidence was closed, the defendant prayed the court to give the jury the following instructions, viz : 1st. If the jury believe from the evidence that the. property ip question was in the possession of'William Spain, at the time of his arrest, or at the time the indictment was found against him, the [383]*383State has a lien upon the property, which could not he divested by any assignment made to the plaintiff in this suit. 2nd. If the jury believe that the property in question was before the date of the assignment in possession of the officers of the State, then the State had a right to retain the said property to pay the costs and expenses of the suit and prosecution of the indictment against Spain which were adjuded against Spain, in favor of the State by the judgment of the Criminal Court of St. Louis county. The court refused to give these instructions — and the defendant below excepted. The court then gave the following instruction for the plaintiff, viz : “ If the jury believe from the evidence that the money in question was assigned by Spain to A. P. Field, to whose use this suit was brought, and that the defendant had notice of the said assignment while the money was in his hands, and before this suit was instituted, the plaintiff is entitled to recover in this action.” The defendant excepted to the giving of this instruction.
The giving and refusing these several instructions, and the excluding the evidence of the execution, indorsement and return are now before us for consideration.
In the first place, I will state that by our statute, Practice and Proceeding in Criminal Cases, art. 7, § 30, “ The property real and personal of any person charged with a criminal offlense, shall be bound from the time of his arrest, or finding the indictment against him (which ever shall happen first), for the payment of all fines and costs which he may be adjudged to pay.”
The 31st section of the same article makes it the duty of the clerk at the end of each term to issue execution for the costs of convictions in criminal cases during the term and remaining unpaid, which shall be executed in the same manner as executions in civil cases.
The conviction of the defendant, William Spain, appears from the bill of exceptions to have taken place on the 29th of March, 1845, and the execution for the costs was dated the 4th day of June, 1846. The execution commands the marshal of the county of St. Louis to make the costs in the case of the State v. Spain, without saying what sum these costs amount to on the face of the writ; but on the back of the writ of execution I find the costs indorsed. The officer is named, and the amount due him as costs, as follows, thus—
July term, 1845. The State v. William Spain. Judgment for costs :
Clerk’s fees.§11 95
Marshal. 10 12
Circuit Attorney.' 8 00
Jailor, Jamison. 56 75
B. Garvin, witness. 78 00
Aug. Guilbreth, witness. 3 00
Service. 1 00
Commission. 5 25
Advertising. 2 50
§176 57
This is the manner of collecting the costs in civil cases. The judgments are, for the debt so much, and damages so much, and costs without specifying what exact sum, and on the execution the costs are indorsed and this has ever been considered in this State sufficient authority to make the costs. I am not satisfied that the execution in this case offered in evidence by the defendant below was void. On the contrary, I think it proper evidence, and ought to have been permitted to remain with the jury.
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RYLAND, J.
This was originally an action of assumpsit brought before a justice of the peace in St. Louis township, by the appellee, William Spain, for the use of A. P. Field, against the defendant, William S. McKniglit, for the sum of ninety dollars, for money and property levied upon by McKniglit, by virtue of an execution from the Criminal Court, in favor of the State of Missouri against said William Spain. From the record and proceedings below, we find the following facts : Spain was arrested by James McDon-ough, captain of the city watch, for grand larceny. McDonough found upon his person a one hundred dollar bank-note of the Bank of Missouri, and a gold watch. This watch and bank-note McDonough, at the time he arrested Spain, took from, and the same remained in the hands of the officers of the Criminal Court of St. Louis county until after Spain was indicted and convicted of the crime of grand larceny, and adjudged to pay the costs of the prosecution. An execution was issued by the clerk of the Criminal Court in favor of the State against the goods and chattels of said Spain, and William S. McKniglit, the marshal of said Criminal Court, levied said execution on the above property, that is, the bank-note and the gold watch, and returned on said execution that he had made by the sale of the same the amount of one hundred and sixty-one dollars, being fifteen dollars and fifty cents less than the costs. It also appears that Spain, shortly after his arrest, conveyed by bill of sale the above property, that is, the gold watch and hundred dollar bank bill, to A. P. Field, Esq., in order to employ him, said Field, as an attorney to defend said Spain on his trial for said grand larceny. It appears that said A. P. Field did defend said Spain on the trial, but Spain was found guilty, the jury stating in their verdict that the “ amount of money stolen was nine hundred and nine dollars and ninety-five cents.” It appears that Captain McDonough had no warrant against Spain at the time he arrested him, nevertheless he, a captain of the city watch, arrested Spain on a charge of grand larceny, Spain was indicted on the charge, was convicted and sentenced to the penitentiary for five years. In order to make the costs of this prosecution, an execution issued, and the property taken from Spain by McDonough was levied on by the marshal of the Criminal Court, the present appellant, and sold to make the costs. The sale of the property to Field was after the arrest and before the indictment.
The plaintiff Spain, to the use of Field, obtained judgment for ninety dollars and costs against the appellant McKniglit, before the justice of the peace; McKniglit appealed to the Circuit Court; there Spain again obtained judgment for $90 against McKniglit, and McKniglit moved for a new trial, which was overruled. He excepted to the opinion of the Circuit Court and brings the case to this court by appeal.
On the trial of the cause in the Circuit Court, evidence was excluded on the part of McKniglit, and instructions refused on his part which at the time were excepted to.by the defendant. It seems that after the defendant had given a copy of the record and proceedings from the Criminal Court of the case of the State of Missouri v. William Spain, indicted for grand larceny, in evidence, also a copy of the execution which had issued on the judgment of conviction for costs' in said case, so as to'show the indictment, conviction, judgment, execution for costs, levy and sale return made by marshal McKnight, the plaintiff moved the court to rule out from the evidence, the execution, indorsement and return, thereto, because the same was void, which motion the court sustained — declared the execution void, and ruled out the same, and the return and indorsement'from before the jui-y as any evidence. To this judgment of the court the defendant excepted.
After this evidence was closed, the defendant prayed the court to give the jury the following instructions, viz : 1st. If the jury believe from the evidence that the. property ip question was in the possession of'William Spain, at the time of his arrest, or at the time the indictment was found against him, the [383]*383State has a lien upon the property, which could not he divested by any assignment made to the plaintiff in this suit. 2nd. If the jury believe that the property in question was before the date of the assignment in possession of the officers of the State, then the State had a right to retain the said property to pay the costs and expenses of the suit and prosecution of the indictment against Spain which were adjuded against Spain, in favor of the State by the judgment of the Criminal Court of St. Louis county. The court refused to give these instructions — and the defendant below excepted. The court then gave the following instruction for the plaintiff, viz : “ If the jury believe from the evidence that the money in question was assigned by Spain to A. P. Field, to whose use this suit was brought, and that the defendant had notice of the said assignment while the money was in his hands, and before this suit was instituted, the plaintiff is entitled to recover in this action.” The defendant excepted to the giving of this instruction.
The giving and refusing these several instructions, and the excluding the evidence of the execution, indorsement and return are now before us for consideration.
In the first place, I will state that by our statute, Practice and Proceeding in Criminal Cases, art. 7, § 30, “ The property real and personal of any person charged with a criminal offlense, shall be bound from the time of his arrest, or finding the indictment against him (which ever shall happen first), for the payment of all fines and costs which he may be adjudged to pay.”
The 31st section of the same article makes it the duty of the clerk at the end of each term to issue execution for the costs of convictions in criminal cases during the term and remaining unpaid, which shall be executed in the same manner as executions in civil cases.
The conviction of the defendant, William Spain, appears from the bill of exceptions to have taken place on the 29th of March, 1845, and the execution for the costs was dated the 4th day of June, 1846. The execution commands the marshal of the county of St. Louis to make the costs in the case of the State v. Spain, without saying what sum these costs amount to on the face of the writ; but on the back of the writ of execution I find the costs indorsed. The officer is named, and the amount due him as costs, as follows, thus—
July term, 1845. The State v. William Spain. Judgment for costs :
Clerk’s fees.§11 95
Marshal. 10 12
Circuit Attorney.' 8 00
Jailor, Jamison. 56 75
B. Garvin, witness. 78 00
Aug. Guilbreth, witness. 3 00
Service. 1 00
Commission. 5 25
Advertising. 2 50
§176 57
This is the manner of collecting the costs in civil cases. The judgments are, for the debt so much, and damages so much, and costs without specifying what exact sum, and on the execution the costs are indorsed and this has ever been considered in this State sufficient authority to make the costs. I am not satisfied that the execution in this case offered in evidence by the defendant below was void. On the contrary, I think it proper evidence, and ought to have been permitted to remain with the jury. What maltes the execution void? The clerk has authority to issue it expressly under the statute. He issues it and indorses the amount of costs due each officer and witness on the writ. The judgment is for costs, not specifying any particular sum. In civil cases the law of Executions, Digest 1845, ch. 61, § 9, p. 476, requires the clerk to indorse upon every execution the amount of debt and damages aud costs before the delivery of the execution to be executed. If there be no debt nor damages, but a judgment for costs only, then I conceive an execution without any specific sum mentioned on its face for costs, will be sufficient, if the clerk indorse [384]*384the amount of costs on it before he gives it to the officer to be executed. The court then erred in its judgment in ruling out the evidence of the execution, its indorsement and return.
The plaintiff contends that the section of the statute which gives to the State a lien on the defendant’s property, real and personal; for the costs, fines, &c., must be so construed as to be a lien on a part or portion only of his property, enough must be left him to employ counsel to assist him in his defense. I cannot so construe the statute. The State has its lien from the arrest or from the indictment, whichever takes place first, upon the property, both real and personal, and the first instruction asked as above by the defendant is the law and ought to have been given.
I am inclined to think that the second instruction likewise should have-been given for the defendant, and such being my opinion of the law governing this case, the plaintiff’s instruction given by the court to the jury is incorrect and ought to have been refused. The court erred therefore in refusing to give the instruction prayed for by the defendant below as above set forth in this opinion, and erred also in giving the plaintiff’s instruction as set forth above. The motion for a new trial ought to have been sustained. Por these errors, therefore, the judgment of the Circuit Court of St. Louis county is reversed. I consider the arrest of the plaintiff, Spain, by Captain McDonough as a valid one, so as to attach the lien of the State upon the goods and chattels of said Spain from its date. His having no warrant is a circumstance of no importance. The arrest was made, and it seems to have turned out a very efficacious one.