State v. White

McKinney, J.’,

delivered the opinion of the Court.

The presentment in this case, charges that the defendant, as constable, wilfully, unlawfully, and corruptly violated his duty, in not returning a warrant issued by a justice of the peace, in trespass, and placed in the hands of the defendant for service, before the justice of the proper civil district, for trial, as required by the act of 1835, ch. 17, sec. 9. The Circuit Court quashed the presentment. In this, there is no error. We are aware of no principle, either of the common or statute law of this State, which makes the act in question a-criminal offense. Whether it would not he the ground of a civil action, is a question not before us.

But a collateral question is submitted by the Attorney General. The transcript sent up to this Court, by the clerk of the Circuit Court, has no caption whatever; nor is there a MU of costs accompanying it; and for these omissions, we are asked to direct that no fees shall be allowed for said transcript.

The act of 1842, ch. 129, sec. 2, directs, that when an “imperfect or incorrect, transcript” shall be sent up to the Supreme Court, the clerk of the Court by whom the same was made out and sent, “shall not be entitled to any fees for the same.” And the act of 1852, ch. 256, sec. 6, provides, that for the neglect or omission of the clerk to perform his duty in sending up a perfect transcript, in criminal cases, he shall forfeit all costs to which he would have been entitled.

And by the act of 1841, ch, 57, sec. 1, it is made the positive duty- of the clerk, in all cases of appeal to the Supreme Court, from either the Circuit or Chancery Court, “ to make out a complete bill of costs in the cause in which the appeal shall be taken, which bill of costs shall accompany the record” sent up to the Supreme Court.

These several provisions are of much practical importance, and must’ be rigidly enforced. In future no .fees or costs will be allowed to any clerk whose transcript may fall within either of said provisions. And the clerk of this Court will see to it, that there shall be no evasion of the law upon this subject.

Motion allowed.