
    No. 79.
    The Officers of Harris Superior Court, plaintiffs in error, vs. Thacker V. Walker, defendant in error.
    A party complaining of error must pay all costs that have accrued up to the time of filing his exceptions, and if he fail to do it and the Clerk issue execution against him, although in the mean time he has obtained a reversal of-the judgment, he cannot arrest the execution by affidavit of illegality.
    Illegality, from Harris Superior Court. Decision by Judge Worrill, April Term, 1856.
    The question in this case arose upon the following facts and proceedings:
    A bill was filed by Walker, defendant and others, against Cook to which he demurred, and the demurrer overruled by the presiding Judge, and upon error to the Supreme Court, the judgment, of the Court below was reversed.
    At a subsequent term of the Harris Superior Court, it was ordered and adjudged that said judgment of the Supreme Court be entered on the minutes of that Court as the judgment thereof. That said demurrer be allowed, and that the complainant’s bill be dismissed. ' It was further ordered that said defendant recover his cost.
    To this judgment, exception was taken and the Supreme Court reversed the same. Pending the case in the Supreme Court, the fi. fa. for cost was issued against Walker for $1,091.66, and defendant filed his affidavit of illegality, on the ground that the judgment on which it issued having been reversed by the Supreme Court, the same was proceeding illegally.
    The Court sustained the illegality, and the officers of Court excepted.
    Seaborn Jones, for plaintiffs in error.
    William Dougherty, for defendant in error.
   By the Court.

McDonald, J.

delivering opinion.

The party complaining of error in the cause on which the Clerk issued execution for costs, having failed to pay them, according to the statute, on taking exceptions to the judgment of the Court, the cause came to this Court and was heard, notwithstanding the costs had not been paid, and the judgment of the Court below was reversed. The Clerk issued his execution for the amount of costs which was due at the time the exceptions were taken and which ought to have been paid within the time prescribed by law, and one oí the defendants filed an affidavit of illegality on the ground, amongst others, that the judgment on which tho said execution was issued and is founded, has, since the issuing of the same, been reversed and set. aside. The fourth section of the act organizing this Court, requires the party excepting to the decision or judgment of the Circuit Court to pay all costs which may have accrued. If he fails to do this, the Clerk has a right to issue his execution for them. He is responsible to the other officers of Court for their costs. The officers of Court are no parties to the judgment of reversal. If, on the judgment as rendered in the Court below, a party defendant pays the principal and interest to the party, instead of giving his bond under the act, and pays the costs, on the reversal of the judgment he may recover back the amount he paid the plaintiffmn the judgment, but cannot recover from the Clerk the amount paid him. He cannot arrest the collection of money which he ought to have paid by affidavit of illegality. The reversal of the principal judgment does not vacate the judgment for costs due the officers and not the party.

Judgment reversed.  