
    No. 101.
    A. S. Rutherford, receiver, plaintiff in error, vs. Seaborn Jones, defendant.
    
       The Clerk of the Superior Court is not entitled to demand the costs for making out the transcript of the record, before transmitting the same to the Supreme Court.
    This was an application for a mandamus, to be directed to the Clerk of the Superior Court of Muscogee County, requiring him to send up the transcript of the record in this cause, which he refused to transmit until the costs of making out the transcript were paid. The single question involved, was the right of the Clerk to demand these costs before transmitting the record.
    Wm. Dougherty, for plaintiff,
    H. Hor/r, contra.
    
   By the Court.

Lumpkin J.

delivering the opinion.

The question submitted, is important to parties litigant, and also to the officers. Both from an examination of the Act organizing this Court, and the general legislation of the State, in relation to costs, our conclusion is, that the Clerk is not entitled to demand the costs for making out the transcript of the record before transmitting it to the Supreme Court.

Under the Act of 1845, organizing the Supreme Court, the party filing exceptions is required to pay only such costs as have accrued up to the time of filing of the bill of exceptions. The making out of the transcript of the record, is subsequent to the filing of the bill of exceptions. In fact, it is the result of this act, and in obedience to the mandate of this Court, contained in the writ of error.

When we look to the current of legislation on the subject of costs, we find that the Statutes are express, that the costs shall not be demanded at the several stages of the case, but shall be collected only at its final termination, out of the defeated party.

We are aware, that in this case, and in this County, where there are a large number of writs of error sued out, and transcripts are in many cases voluminous, this rule may work a hardship upon the Clerk. But a different rule would be productive of much greater injury, both to suitors and their counsel, especially where causes are tried in Counties remote from the residence of the attorneys. It would be throwing an obstruction also in the way of suitors desirous oí appealing to this Court, which we do not feel authorized to do, unless required by the Act of the Legislature.

Let the mandamus issue.  