Bowie v. Maryland Agricultural College

Weisel, J., delivered the opinion of this Court. The motion to dismiss this appeal, because the record was not transmitted to this Court within the time prescribed by law, was submitted upon the affidavits of the Clerk and Deputy Clerks of the Circuit Court for Prince George’s County, from which it appears that the delay arose from an order of the clerk not to make out the record until the fees for the same were paid or secured to be paid, and that they still were due and unpaid. We are referred to the Code of Public General Laws, Article 5, sections 29 and 30, to support this action or justification of the clerk, and to show that the default was that of the appellants or their counsel. We do not discover in these sections, or elsewhere, any provisions authorizing the clerk to withhold the record until the fees are paid ; and as timely orders were given by the appellants for making out and transmitting the record, we think the delay arose from the omission of the clerk, and that the appeal cannot therefore be dismissed.

The plaintiff declared upon a joint demand and counted upon the promissory note of the defendants, (the appellants in this cause,) and also for money lent, paid out and expended) and money had and received. To the pleas of payment and set-off, the plaintiff replied limitations and former recovery to the set-off. There was a rejoinder of nul tiel record to the former recovery, and the issue on this seems by the record to have been