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 put to the jury, with the other issues in the case.

The set-off as pleaded was that of a single demand of one of the defendants, Robert Bowie; but it was not when put in, nor was the evidence offered to support it objected to on that account, but was answered by a plea of former recovery, setting out that the same account in bar had been pleaded in another action by the same plaintiff against the said Robert Bowie alone, in which the verdict' and judgment of the Court were for the plaintiff. This *277was put in issue by tbe plea of nul tiel record, and that issue was properly for the Court. The Court found such a record and adjudged it amounted to a former recovery.

The defendants excepted to this opinion and judgment of the Court, and it forms the only matter of inquiry for this Court.

Whatever irregularities arose which might have been taken advantage of by demurrer, or objections to testimony, do not stand in the way of this inquiry. The only issue made by the pleadings on this branch of the case, was the existence of the record, and upon that the defendants rested. If found to exist, its legal effect followed as a matter of course. It showed that the matter pleaded as a set-off had been adjudicated in another trial, and found against the defendant, Robert Bowie, in whose behalf it had been offered in the present case, and consequently could be no bar in this. The judgment should therefore be affirmed.

Judgment affirmed.