Stamper v. State, No. 74

No. 74 | Ga. | Jul 15, 1852

By the Court.

Warner, J.

delivering the opinion.

[1.] The securities in this case, surrendered their principal in open Court in discharge of their liability, on a forfeited recognizance, as provided by the 3d section of the Act of 1831, and the question made by this record is, whether the Solicitor General has the legal right to tax them with the payment of five per cent, commission on the amount of the bond, and to collect the same, as a condition precedeiit to their discharge from liability on such bond or recognizance ?

The Court below held that the securities should pay to the Solicitor General fifty dollars, before they were entitled to be discharged from their liability.

Whereupon, the securities excepted, and now assign the same for error here.

The Court was clearly in error, in our judgment, in refusing to discharge the securities, without payment to the Solicitor General of the fifty dollars, as commissions.

First, because the Statute authorizing their discharge on the surrender ot their principal, prescribes no such condition. And second, because the Solicitor General is not entitled to any such commission as that claimed by him.

By the 1st section of the Act of 1839, the lee of the Solicitor General in such a case, is prescribed and limited to Jive dollars. Cobb’s Dig. 362. This fee of five dollars, is directed by the Act, to be taxed in the bill of costs; to that, the Solicitor General is entitled, and no more.

In Simpson vs. the State, (9 Georgia Rep. 111,) we held that officers charging costs, and exacting its payment from the pocket of the citizen, must always shew the authority oj the law to do so.

The Attorneys and Solicitor General, were included in the fee bill of 1792, (Prince, 261.) The 4th and 7th sections of that Act, are very stringent against all officers mentioned therein, who shall demand any greater or other Jees, not allowed therein, or such as have since been allowed by subsequent legislation. We intend to say, that all officers are allowed to charge such fees as are allowed by that Act and by subsequent Acts regulating the same, and if they demand more or other fees, not allowed by law, then they are amenable to the provisions of that Act. Let the judgment of the Court below be reversed.