
    Dickerson v. Shelby.
    Clerks of tbe district court are entitled to fees before losing control of tbeir service.
    Fees for making out a transcript, may be required before tbe case is docketed in tbe supreme court.
    
      Error to Van Ewren District Gov/rt.
    
   Of inion by

GreeNe, J.

A motion is made in this case fora rule upon the clerk of the Yan Burén district court, to send up the record in obedience to the writ of error. But it is contended, that the motion should not be granted because the plaintiff in error has not'paid the clerk’s fees for making the transcript of the record. The question arises, was the clerk entitled 'to those fees before losing control over the transcript. "We think this case forms no exception to the general rule in relation to fees. Independent of the prevailing practice, which secures compensation to officers of courts whenever they are rendered, we have a statute which provides,‘.that all fees shall be paid by the party requiring the services, on the same being rendered. Bev. Stat. 222, §4. If then, a' clerk of court requires his fees upon rendering any service for a party, he cannot be required to place those services in the possession of such party until he receives payment for them. It is true, a writ of error is a writ of right; it is a mandate -which should be promptly obeyed in behalf of the party for whose benefit it issued; but still it is not a writ requiring gratuitous service. Although it will issue as of course” upon any order of judgment of a district court, still the clerk who issues it is- entitled to his fees for it, before he can be required to let it pass from his hands, and upon the same principle, the clprk below to whom the writ is directed, is entitled to his legal fees for preparing the returns thereto; and if payment is required, it should be made by the plaintiff in error before the papers are filed and docketed in this court, Where such preliminary payment is demanded by the clerk below, he should give notice thereof to the plaintiff or his attorney, and send his bill of particulars and demand of payment, with his returns in the case, to the clerk of this court, and authorize him to receive the fees for him, and when such bill and declaration accompany the papers, the clerk of the su- . preme court will not file the papers or docket the case until payment is made. This rule we think, is conformable to the spirit of the statute, will insure imperative obedience to writs of error, and secure the clerks below in the collection of fees which might otherwise be lost. It will be seen, that the clerks of the district courts under this arrangement, are required to obey the writ of error and make returns as provided by statute, whether his fees are previously paid or not.

J. II. Cowles, for plaintiff in error.

II. If. Sheíby, for defendant.

The motion is granted conformable to this opinion.  