Receiving fees before they are due, as weu as receiving more than is due, is extortion; so say the books. But this cannot be correct law'in all cases. Receiving fees before they are due, at the instance, and for the accommodation, of the person paying them, I should not think extortion. Numberless cases may happen, where it would be a convenience to the party paying fees, to advance them before the business was done; they could not be demanded as of right, generally: the fees to the clerk of this court, for recording, stand on different ground from any other; it is the duty of the clerk, in each vacation, to record all the cases decided at the past term; he has the whole vacation to perform this duty in, and it often takes the whole of it to complete the records. Persons in whose favor executions have been awarded, may require them to be issued immediately; and usually do so ’: the clerk must then make up his bills of cost, and issue execution before the record is made up; he must either include his fees for recording, or take some other method of getting them, after, perhaps, the execution is returned satisfied. Such being the case, it seems to me very plainly, that the correct method is the one pursued by the defendant, to make up the whole Mil of costs at one time. He is responsible, undoubtedly, for taking too much in any case; but here he has been sufficiently on his guard against that.
Hpon hearing the opinion of the court, Harris entered a noli prosequi.