It seems to me that, notwithstanding the lengthy discussion and the great array of authorities in the opinion of the majority, this case is reduced to the simple question whether or not the chancery coat had the power to compel appellant, as a condition upon which he would continue the prosecution of his case, to pay into the registry of the court the sum of $1,000 and such further sums as the court might direct during the progress of the trial, to defray one-half of the expense of the audit of appellee's account, which appellee himself had requested. If the court possessed that power, there is no further question involved, for, if the court had no power to impose such a condition, then it is proper for this court to compel the court to proceed with the trial of the cause, as appellant has no other remedy.
Appellant filed his complaint as a citizen and taxpayer, alleging that appellee, as a public officer, had wrongfully withheld large sums of money which should have been paid into the treasury in excess of the amount which he is authorized by law to retain as salary and expenses, and the relief sought was to compel appellee to pay this excess, alleged to be about $50,000, into the county treasury. There was an answer filed, and on the day set for trial appellant came into court, ready to introduce testimony, documentary and oral, in support of his complaint, and the court, on the motion of appellee, appointed a "master and auditor" to audit the accounts of appellee, and ordered that each of the parties pay into the registry of the court the sum of $1,000 in cash or give bond for that amount four the payment of the expenses *Page 320 of the master, and, when appellant refused to comply with that order, the court made another order directing that no further steps be taken in the case until appellant should comply with the court's order by depositing with the clerk of the court the sum of $1,000.
The chancery court, with all of its extraordinary powers and flexible remedies, cannot make the law. It can mold a remedy for any wrong which is irremediable in a court of law, but it cannot impose an unauthorized and burdensome condition upon the right to litigate. The only statute of this State requiring the plaintiff to give a bond for costs is in the case of a non-resident plaintiff. Any litigant must pay the costs which he incurs, and the final judgment of the court in a cause should include an award of costs. The award of costs is a final judgment, and must be rendered at the end of the litigation, not at the beginning or during its progress. Courts of equity are clothed with discretion in awarding the costs between the parties, but the award is nevertheless a final decree, which can only be rendered at the end of the litigation. The court has no authority, statutory or otherwise, to require the payment of costs in advance or give security for costs. No statute is referred to in the brief of counsel or in the opinion of the majority which confers any authority upon the chancery court to require security for costs other than against a non-resident, as provided by statute. Crawford Moses' Digest, 1844. The sole justification which the majority find for such a requirement is the statute authorizing the court to appoint a master. I do not think that the statute authorizes the court to make this appointment of its own motion, but it may do so upon the request of either party. At any rate, this appointment was not made by the court of its own motion, but upon request of the appellee. Appellant objected to the appointment, and proposed to proceed with the trial, and was in readiness to introduce his proof. The appointment was made at the sole instance of the appellee himself, and I fail to find any authority for the court to require security from appellant or *Page 321 require him to pay the expenses until the court has heard the evidence and renders a final decree settling the rights of the parties. The discretionary power of a court of equity in finally awarding the costs does not extend the power of the court so as to authorize it to require security in advance for the payment of the costs. If the chancery court has any such discretionary powers and a litigant must submit to them as a condition of the prosecution of his legal right, then he can never get to this court for relief without complying with the court's order, and the effect is to give the chancery court unrestricted authority in prescribing conditions upon which a litigant may prosecute his right of action. The fact that a litigant may or may not be able to comply with the court's order is unimportant, for, if it is a wrongful or unauthorized imposition, he should not be compelled to submit to it.
It can scarcely be disputed that mandamus is the proper remedy if the order of the chancery court was made without authority. Appellant's refusal to comply with the unauthorized order completely tied his hands, so that he could not proceed with his suit, and he has no remedy other than to compel the court by peremptory mandamus to proceed with the trial. That mandamus is the appropriate remedy in the case of a wrongful refusal of the trial court to proceed has been expressly settled by decisions of this court. Gilbert v. Shaver, 91 Ark. 231; Automatic Weighing Co. v. Carter, 95 Ark. 118.
My conclusion is that the order of the chancery court was not merely erroneous, but that it was void, and constituted no justification for the refusal of the court to proceed with the trial, and that the court ought to be compelled by peremptory mandamus to proceed with the trial in the ordinary way. The costs, including the master's fee, can be awarded in the final decree in the exercise of the court's discretion, subject, of course, to a review in this court on appeal.
Mr. Justice SMITH concurs in these views. *Page 322