Mahone v. Long , 3 Va. 557 ( 1825 )

Judge Cabell:

The appellant in this case, having failed to bring up a copy of the record within the time limited by law, the ap« pellee has filed it, and now prays that the seppeal may be dismissed, and that the fee to the clerk of the Chancery Court, for the copy of the record filed by him, may be taxed in the bill of costs, as apart of the costs of defending the appeal.

That fee is, certainly, not a part of the costs of prose-, cuting or defending the suit in the Court below; and cannot, therefore, be charged by that Court as such. It is an expense which is incurred in the prosecution of the appeal; and it is thrown upon the appellee, by the failure of the appellant to bring up the record. It should, therefore, be charged, as prayed by tho appellee, as a part of the costs of defending the appeal.

There is equal reason for applying this rule to those cases also, where the record shall be brought up by the appellant. The rule, therefore, will be general; that the party who has filed the record here, will, in all cases where he recovers his costs here, have the fee for the copy of the record filed, charged as a part of his costs in prosecuting or defending the appeal.