
    *Moses D. Hyams vs. John Boyce, Jr.
    The custom of postponing the payment of the Clerk’s costs, until the termination of the suit, will be adhered to, as indicating the proper construction of the “fee bill” of 1839, p. 8.
    Before Richardson, J., at Charleston, January Term, 1841.
    This case came up upon the following rule against the Clerk of the Court of Charleston District:
    On motion of Kunhardt ⅜- Pringle, plaintiff’s attorneys, it is ordered that C. C. Strohecker, Esq., Clerk of the Court of Common Pleas, do show cause on Saturday, the 30th inst., at 10 o’clock, A. M., why he refuses to deliver to the plaintiff’s attorneys, the writ signed by him as clerk in the same. By the Court.
    (Signed) C. C. Strohecker, C. C. P.
    RETURN OP THE CLERK.
    C. C. Strohecker, Clerk of the Court of General Sessions and Common Pleas, for Charleston District, upon whom the above rule has been served, to show cause why he delivers to the plaintiff’s attorneys the writ signed by him, as Clerk in the said action, for cause showeth, that by the present fee bill of 1839, and under the law in relation to the fees of the Clerks of the respective Circuit Courts of Common Pleas and General Sessions in this State, the said fees are of right demandable and payable upon the performance of the specific service rendered, from the party at whose request, or for whom the service was rendered. That in the absence of any special contract, the law raises a promise on the part of the person at whose request the Clerk renders any specific service, chargeable in the fee bill, to pay the fee allowed by law presently, as in all cases of implied contracts ; and that in the event of such service being demanded, the respondent is not bound to render the same, unless the fee allowed by law is tendered; and, as in this case, upon signing a writ, the respondent has a legal right to withhold the same from the party until the fee for such service is tendered. This view of the legal rights of the respondent is submitted as according best with the general principles of the law on the subject of the costs of actions at law, in which the party, plaintiff or defendant, does *actually recover from the losing party, the expenses to which he has been put in the prosecution or defence of the action. And the recognition of the legal right of the Clerk to require his fees to be paid when the service is rendered, is believed to be essential to the proper discharge of the duties of the office, and the preservation of proper order and economy in the management of the business of the same, as well as furnishing the only means by which the clerk can realize his payment for his services which the law intended him to receive. The respondent, in the exercise of this right, does not intend to introduce any new rule or practice which may work any inconvenience to parties, but the right being recognized, will so act upon it, that while he may feel himself willing to keep accounts with the practitioners at the bar, as formerly, he may, if he find necessary, and as he may find it advisible, refuse to give long credits for his services, and claim payment for the same when rendered.
    C. C. Stroheckek,
    
      C. G. S. & C. C. P.
    
    On hearing the rule and the return, his Honor, Judge Richardson, ordered the rule to be made absolute.
    An appeal made from his Honor’s decision, on the ground that the same is contrary to law.
    
      Rice, for the motion,
    cited A. A. 1791, (1 Faust, 3,) fees of office are established p. 22, (2 Faust, 33.) A. A. 1827, fee bill, p. 55. A. A. 1839, p. 14, (Bac. Ab. tit. costs.)
    
      Kunhardt, contra,
    contended that neither the plaintiff nor his attorney had the right to collect Sheriff’s and Clerk’s costs ; cited McC. 25. Costs abide the determination of the action.—Ib. 25. The clerk cannot recover his costs against the plaintiff, unless the defendant be insolvent, or the plaintiff' has collected them. The law, he contended, never would have given the Clerk the right of issuing execution for costs if they had contemplated he had any other remedy.
    
      Grimke, in reply,
    cited 7 Cranch, 276—each party is liable to the Clerk for his fees, no matter who recovers, “pr. Ch. J. * Marshall," A. A. 1839, p. 16, Clerk’s right to retain. 2 Stran. 1126; 8 Mod. 226-307—2 P. W. 460.
   Curia, per

Richardson, J.

The question is, has the Clerk of the Court of Common Pleas, before he delivers the writ necessary for the commencement of an action at law, the authority to require of the suitor the costs allowed by the Fee Bill of 1839 ? The demand is small. But the decision of the ease may have important circumstances. It involves the right of litigants, and it may affect the principles of judicial justice. The fee bill of 1791, the raised fee bill of 1827, and that of 1839, under which last the question before the Court is made, all allow the costs to the Clerk, in the same language as they are allowed to some other officers : as the Registers, Ordinaries, Sheriffs, &c. But custom has obtained, at least since the fee bill of 1791, to tax and allow the costs of the Clerk, together with what are called the Court charges, at the termination or dismissal of a suit, and not before.

In the case of Corrie vs. Fits & Givens, (3 McC. 25,) this custom is alluded to, and as far as it can have influence, the Judge justifies it under the fee bill of 1791. That case decided that the Clerk can require payment of his costs of the plaintiff, who has obtained judgment, only in case of the insolvency of the defendant. Now, if the Clerk had the right in the first instance to call on the plaintiff, for his successive fees, he surely could not have lost the right by the defendant’s being condemned to restore the fees that the plaintiff is supposed by the judgment to have paid. The converse would have been the conclusion.

I decided that case on the circuit, and have now an opportunity of adding my own reasons to those of the late Court of Errors in support of that decision, as well as in favor of the present. In that case it is incidentally stated, that in England the plaintiff pays the Clerk’s costs at the successive stages of the case. “ But here the costs abide the determination of the case.” If this had been the precise point for the decision of the Court, it would have concluded the present question, at least under the fee bill of 1191 The fee bill of 1839 allows the Clerk for “ signing writ,” and all incidental services before filing declaration, “fifty cents.” But is he entitled to the money upon signing the writ ? or must he abide *the determination of the suit, and look in the first instance to the party against whom the costs maybe ordered, according to former practice ? As a general rule, officers are entitled to their costs as they do successive official acts. But, is there not good reason for the custom of making the Clerk of the Court an exception to this rule ?

Before the constitution of 1191, the Judges also received costs, and were paid for their services in that way. But as far as 1 have understood, their costs, too, abided the determination of suits. And I think the reason and principle of practice may be seen by referring to the origin of costs, and the principles of judicial justice. At common law no costs were allowed in courts of Justice The plaintiff who lost his suit might be fined, pro falso clamare, “or judged in misericordia,” according to the justice or injustice of his case. And perhaps an unjust defendant punished in the same way, or by increased damages. But such fine or damages necessarily abide the determination of every suit. In process of time, costs were given to the officers of the Court in lieu of such fines, which formerly went to the King. And is there as not good reason that they too shall abide the event of the suit, and fall only, or at least in the first instance, upon the plaintiff, who made a false clamor, or the defendant, who set up an unjust defence ? If otherwise, would we not lose sight of the proper rights of parties claiming justice at the hands of the Judges ?

It is one of the first principles of Courts of Justice, that all parties shall be heard without obstacle, expense, or delay. The poor and the weak absolutely require such principles for protection, and they must be awarded to all alike. But if at every step of a case, the plaintiff shall be obliged to pay costs to ministerial officers before he can reach the ear of the Judge, may we not occlude the Courts of Justice, at least to some persons ? A writ is the judicial notice to a debtor that his creditor demands justice. The declaration is the precise statement of the demand. To this the debtor responds; and the issue is made up for the decision of the Court. Such are the legal forms through which we demand to be heard, and have justice judicially administered; and costs may be very justly required after and according to the decision. But any hindrance, in any step, to the judicial hearing, would be as a lien to our system of justice ; as to impede a petition to the * Legislature for a right, or to the Governor for mercy. They all stand upon the same principle — the right to have a hearing and decision of the case presented. Such principles of judicial justice are summed up in Magna Charta. “Nulli negabimus, nulli vendemus, nulli deferemus justician.” And these words, so full of history and meaning, suggest to the mind the whole additional argument I would offer in support of the custom of postponing the payment of the costs to the determination of suits. The argument on the other side is, that fees or costs being allowed by the Act, they ought to be paid as the services are rendered. But laws are to be construed by their subject matter, which includes the moral and legal principles that necessarily belong to the subject.

The Court therefore think that the custom of postponing the payment of the Clerk’s costs, which has obtained for fifty years, under the former fee bills, should be adhered to, as indicating the proper construction of the new fee bill, which, let it be observed, must have been passed under a full knowledge of such customary and habitual construction of all the former fee bills ; and a custom so long and so closely connected with the subject of the new enactment of 1839, can scarcely be considered otherwise than as a part of the subject matter itself, and would have naturally called for positive expression if it had been intended to change the custom.

The Circuit decision is therefore affirmed, and the motion dismissed.

The whole Court concurred. 
      
       5 Stat. 154. 4 Stat. 333. 12 Stat. 8.
     
      
       1840, 11 Stat. 6. An.
      
     