Lyon, J., delivering the opinion.
1. By the general law of the State, no costs are recoverable from one for an offense against the criminal laws, until convicted. Cobb Dig., 857-9, 860-1.
2. It is urged in support of thejudgment of the Court below as to the costs of the magistrates and constables, the payment of which was ordered by that judgment, that the county of Bibb is an exception to the general rule, and the Acts of 22d December, 1857, pamphlet page 234, and of 22d January, 1852, pamphlet page 443, are relied upon in support of that position. Those Acts provide, “that when any person is arrested under a charge of felony or misdemeanor, under any warrant, and enters into a bond, he shall pay the magistrate’s and constable’s costs.” We admit that these statutes are an exception tp the general law; but this case does not fall within the exception, and as these statutes are in derogation of common right, we cannot by construction extend it to a case that is not plainly within its import, although we think it is within the spirit of the statute. The bond was not given to or taken by the magistrate under the arrest; but the bail was refused and the accused committed to jail. This carried the case out of the provisions of the statute, and when the Judge of the Superior Court subsequently upon the hearing of the habeas corpus admitted the accused to bail, he had no power to put other terms upon him than those required by the general law of the land. It was in his *340discretion to admit to bail or not, but not to impose additional burdens.
3. So we think that the order of the Court for the payment of costs was erroneous, except as to the costs that accrued upon the. hearings of the writ of habeas corpus and in that matter we are of the opinion that the officers are entitled to their fees on each hearing, and when the services were rendered by the sheriff, that he is entitled to the fees allowed by law to sheriff’s for such service, and not to those of a constable, although the same service might have been rendered by a constable.
Let the judgment be reversed.