Stevens v. Nisbet

Judgment reversed. Courts. Costs. Jurisdiction. Practice. Before Judge Boss. City court of Macon. June term, 1891. John Walter Bobison, for plaintiff. No appearance for defendant. At the March term, 1890, of the city court, a scire facias was issued against Stevens and the surety on his recognizance, requiring them to show cause at the next June term why their bond should not be forfeited. At that term Stevens answered, showing that the accusation of receiving stolen goods, to answer which the bond was given, was fatally defective, and that no conviction could be had on it. For said defect a nolle prosequi was entered, and when the scire facias was called in its order it was dismissed for want of prosecution. At the same term when the case of the State v. Stevens was called for trial, the court refused to allow him to go to trial until the costs of the scire facias were paid. By order of the court he was arrested and placed in the prisoner’s dock, and was notified that if said costs were not then and there paid the jury would be discharged and he be remanded to jail; whereupon he paid the costs to Nisbet, the clerk, under protest. At the next September term, Stevens petitioned for a rule nisi against Nisbet, clerk, calling on him t,o show cause why these costs should not be refunded. Nisbet demurred on the ground that the remedy, if any, was by exception to the ruling of the judge in ordering the payment of the costs, and not by rule against the clerk. The demurrer was sustained, and Stevens excepted.