
    Wells v. Potter.
    Argued July 16,
    Decided August 10, 1904.
    Complaint. Before Judge Overstreet. City court of Sylvania. January 12, 1904.
   Candler, J.

1. A due-bill given by the defendant in a criminal case to the clerk of a court in this State, in settlement of a bill for costs rendered by the clerk before there had been any conviction of the accused, who was eventually acquitted, was without legal consideration; and upon the trial of an action by the clerk on the due-bill, before the judge without a jury, where these facts were admitted, judgment should have been rendered for the. defendant.

2. Where the accused in a criminal case excepts to the overruling of a demurrer to the indictment, and brings the case to this court before there has been any trial on the merits, the clerk of the court in which the case is pending has no right to demand, as a condition precedent to sending up a transcript of the record, the payment of accrued costs.

Judgment reversed.

All the Justices concur.

Cited by counsel: Penal Code, §§ 1078; Civil Code, §5707, 5394, 3723; Code of 1882, §4631; Ga. R. 33/338 (1); 40/476 (3); 72/673; 11/643 (2); 7/64.

E. K. Overstreet, for plaintiff in error.

Albert L. Potter, contra.  