The first item objected to by the counsel for appellants is the charge for writ of error, scire facias, &c. &c. &c., while the case as it is alleged was brought here by agreement, and no process actually issued.
The Court is of the opinion that the charge is a proper one. Upon the filing of the record, the clerk had a right to issue a scire facias and file the writ of error, unless he was expressly directed by the parties not to do so. The writ of error, in fact, is never issued, when the record has been filed,, but remains on file in the office. The scire facias is the only process which issues.
The other item complained of, is the sixth, being a charge for making “copies of abstracts, 856 folio, $128.” Upon an inspection of the papers in this case it appears, that the case was submitted by both parties upon briefs and written argument. The appellant had filed his abstract and written argument in compliance with the 20th rule of this Court. Neither the Court nor the counsel for appellee, made any objection to said abstract, and in fact, it was fully sufficient for the purposes intended, it being also accompanied with an elaborate argument.
The appellee also filed an abstract of the case, together with an argument, copies of which abstract and argument he had made out by the clerk, and for which copies, the charge is made against the appellant, who was the unsuccessful party.
The 22d rule of this Court, by which the defendant’s counsel is permitted, if he be not satisfied with the abstract or abridgment by the plaintiff’s (appellant’s) counsel, to furnish each of the Justices of this Court, which lack for the abstracts, as he shall deem necessary to a full understanding of the merits of the cause, we think does not apply to this case.
It can never apply to a written argument, nor is the defendant entitled to have the making out of his abstract and brief charged against the plaintiff, unless the Court have first decided that the plaintiff’s abstract and brief is not sufficient, and the plaintiff’s counsel have failed to file a satisfactory one.
We look upon the transaction in this case as one of a private nature between the clerk and defendant’s counsel, and for which, none but the defendant can be held responsible by the clerk.
Motion allowed.