Crawford v. Cate

By the Court. Benning, J. delivering the opinion. We agree with the Counsel for the defendant in error, that the Clerk is not bound to recieve an appeal, even from an administrator, .until the costs have been paid to him. But, then, we hold, that if the Clerk does receive an ap [71] peal from an administrator, without exacting the costs, the appeal is good, and the Clerk becomes estopped from saying that the costs have not been paid to him — estopped as to all persons, at least, except the appellant. The Clerk, in receiving an appeal is, so far as the costs are concerned, the agent of both the appellant and the appellee. And if. the appellee were present, and were to tell the appellant that he might appeal without paying the costs, would the appellee have the right to move, afterwards, to dismiss the appeal on the ground that the costs had not been paid ? . Certainly not. There may be appeals, by consent of parties; and in such cases, the costs are hardly ever paid at the time of the appeal. In this case, we consider the appeal to have been received by the Clerk; for although there is, at the foot of the entry of appeal, a memorandum of the Clerk, that the costs had not been paid, yet, that is entirely consistent with the idea that the Clerk had received the appeal. Its object may well have been merely to exclude the conclusion, as between the Qlerlc and the appellant, that the costs had been paid. We therefore reverse the judgment of the Court below.