Appellant complains in his motion herein, and makes the statement that the justice of the peace has heretofore refused to retax the costs herein, as it was his duty to do, under Art. 1016, C. C. P. The record does not show any such refusal, and we are without authority to go outside of the record in such matters. We are also loath to think that elective officers of our State will deliberately refuse to do something that the statute prescribes they must do. There are ways provided by law where such officers can be compelled to perform the duties required by law to be done by them.
We confess the presence of some doubt in our mind as to whether or not the constable was entitled to his herein charged fees. There seems to be some intimation in the facts that would show that he was attempting to show the relator and his employer the requested courtesy of allowing the driver to proceed with his freight rather than incarcerating him in jail and tying up his truck until bail could be made for the driver of such truck. Under the circumstances the relator might be held to have waived his commitment, and, therefore, his release thereafter.
Suffice it to say, we think the original opinion herein properly disposes of this matter, and the motion is overruled.
Overruled.