
    Lucky vs. Watkins, Adm'r. etc.
    
    In a trial of a petition for a divorce, the petitioner having excepted to the opinion of the court, set out the testimony, both written and verbal, in his bill of exceptions, and appealed to the supreme court; before a trial of the case, the petitioner died, and judgment of abatement was entered; the clerk, in enrolling the proceedings in the case, enrolled the whole bill of exceptions, proof and all, and brought suit against petitioner’s administrators, to recover the fees for enrolling the same: Held, that under the acts of 1795, ch. 1, sec. 26, and 1801, cb. 6, sec. 44, the , clerk is entitled to recover for such service; and that he was bound by law to- enrol the bill of exception in such cáse.
    In .taxing the costs'for enrolling the proceedings in a divorce casé, the clerk must tax for enrolling the petitions, answers, pleas, &c. according to the fees in equity, and for the enrolment of the bill of exceptions according to the taxation in law cases.
    This was an action of assumpsit for. work and labor done as a clerk, &c.
    The following facts are agreed upon in this case. The defendants intestate, Thomas G. Watkins, filed his petition in the circuit court of Greene county, against his wife, Susan W. Watkins, praying a divorce from the bonds of matrimdny; to which petition, the said Susan filed her answer wholly contradicting the allegations of said petition, and denying that the said Thomas G. had any reasonable or just cause of divorce whatever. Said cause was continued from term to term of said court, until the September term, 1828, at which time said cause was finally determined against the petitioner, Thos. G. Watkins, his petition dismissed, and judgment against him for the costs of 'the suit. From which decree, the said Thomas G. Watkins prayed an appeal in the nature of a writ of error, to the supreme court at Jonesboro’, which was granted. Upon the hearing in the circuit court, a great many depositions by the respective parties in this case were' read in evidence, many witnesses were also examined, viva voce; all of which evidence", written as well as parol, was incorporated in the bill of exceptions .taken by the said Thomas G. Watkins to the opinion and judgment of the court in said cause, and made pail of the record of the suit to be certified to the supreme court. It is further agreed, that after the filing of the record of said suit in the supreme court by the said Thos. G. Watkins, and before the term of the court to which the same was to have been heard, the said Thomas G. Watkins departed this life, and at the ensuing term of said court his death was suggested on the record of said court in abatement, and thus the cause terminated. The clerk of the supreme court, the plaintiff in this suit, in taxing the costs of the said Thomas G. Watkins in said supreme court, amongst other things, taxed to the said Thomas G. Watkins, the sum of two hundred and sixty-nine dollars and twenty-five cents, for enrolling the record of said cause in said supreme court; which record made one thousand and seventy-seven copy sheets, at twenty-five cents per copy sheet; and which record, so enrolled in said supreme court, embraced all the evidence m the case,included in said bill of exceptions taken by the said Thos. G. Watkins, the depositions and other written evidence, as well as oral. If, from the foregoing facts, the court shall be of opinion that the plaintiff is entitled to charge' for enrolling the evidence insaid cause, included in said bill of exceptions, thou it is agreed that judgment shall be entered in favor of the plaintiff for said sum of two hundred and sixty-nine dollars twenty-five cents, together with the other legal costs of said suit; but if the court shall be of a different opinion, then judgment shall only be rendered for such costs as the plaintiff by law is entitled to.
    
      R. J. JW Kinney, for plaintiff.
    
      Jno. Cocke, for defendant.
   Peck J.

delivered the opinion of the court.

Upon the case agreed and presented by this record, we arc of opinion that the clerk is bound by the act of 1794, ch. 1, sec. 26, to record the proceedings at length. The words ot the .act are unambiguous. “!< or the better preservation of the records of the court, when any cause is finally determined, the clerk of each court shall enter all •the proceedings therein in a hook well bound, and an entire and perfect record make thereof.” -The general terms used, are so broad as to cover all causes in any of the courts where the same have been finally determined.

It is supposed that the act of 1801, ch. 6, sec. 44, •has limited the terms of the act of 1794, and that the record to be made shall consist of bills, answers, pleas, demurrers, replications, issues of fact, verdicts therein and decrees. At the time these acts passed, the superior • court alone had jurisdiction of equity causes. The evidence was heard viva voce, and the decree pronounced. In that court, the enrolment specified in the act of 1801 could extend no further.

The record before us falls under the provisions of the act of 1794. The cause had been finally determined by the abatement, and judgment pronounced. Looking into the case agreed, it must be seen that the bill of exceptions is part of the record, and that the clerk could not perform his duty without making an enrolment of the whole. But the case itself is of a mixed character, partaking partly of proceedings at law and in equity. To fix the fees to be charged by the acts, the clerk is allowed at the rates given in chancery for the petition, answer, replication and decree, by the copy sheet. For the bill of exceptions, the taxation must conform to the rates in law proceedings, at the rate of ten cents for every copy sheet of one hundred words.

The clerk will examine the taxation, make it conform to this opinion, which, when reported, will be the basis for the judgment of this court.

Judgment affirmed.  