delivered the opinion of the court.

It appears that the proceedings in which this appeal had its origin, were in a cause which, at the time they transpired, was pending in this court on an appeal, with a recognizance. Such an appeal, it would seem, ought to arrest all the proceedings in the cause in the court from which it was appealed.

But this judgment is so irregular in its character, that it is hard to find a denomination under which to class it. We are at a loss to determine whether it was regarded as an original suit, or whether it is a branch of another action. However it may be classed, or under whatever denomination it may be placed, one thing is evident, that, if it is sanctioned, then the law is proclaimed that the fortune of a suitor, who is involun*68tarily forced into tbe courts of justice, is at tbe discretion of tbe judge ; and that, too, not for tbe purpose of responding to tbe result, not to satisfy tbe judgment, but for the payment of costs, which be and those whom be appoints may, at their discretion, incur. Here is a defendant in court, and, on motion by a stranger to the suit, a judgment for six hundred dollars is rendered against him for costs, which sum does not include half the costs charged, and none of those enumerated by law. The commissioner appointed by the court to state an account, has no authority to go out and employ what clerks, for what time and at what salary he pleases, to be paid by the litigants. It is useless to attempt to convince judges who serve for moderate salaries, and who, in the last resort, determine all controversies arising in the state, that twelve hundred dollars is a necessary expense for clerk hire, in taking the account in one single litigation, of an ordinary nature, characterized neither by the amount involved, nor other unusual circumstance. Every judge’s experience and observation should satisfy him at once, that such a charge should receive no countenance from a court of justice. He ought to listen to no witness on such a question. Shall a commissioner of a court, without authority, be permitted to raise an assumpsit against a litigant for any amount that may be thought to be just by any witness he may call for that purpose ? This course may seem harsh, and may operate in a way which we may wish could be avoided, but it is necessary to crush this thing in its inception, that all persons whatever may know that the fortunes of litigants are not at the mercy of the officers of the courts of justice. The purity of the administration of justice imperiously requires this at our hands. Nothing would so effectually undermine the courts and destroy all confidence in their integrity, as the upholding such proceedings. The court should have devised some means of taking an account acceptable to the parties, for avoiding so great an expense, which is so well calculated to heap odium upon the administration of justice. Nothing less than the consent of both parties should induce a court to incur such an *69expense. One party, because be may be sanguine of success, should not be permitted to conduct a suit or defence in such a way as to ruin his adversary by the payment of costs.

As both parties, in their statements, referred to the case of Boyle v. Hardy, now before us, of which this cause is a part, we have regarded the records as one, without putting the parties to the expense and delay of an amendment.

The costs of taking an account should regularly abide the event of the suit, then to be taxed as required by law. If they are paid by the party at whose instance they are incurred, the ultimate liability for them must be determined at the end of the suit. We see no warrant for dividing them between the parties before a final decree, and making each party pay one half. By entering as reasons facts alleged to have transpired at a former term, but which do not appear of record, no authority is conferred for such a course. When costs of suit are at the discretion of the court, the controversy must be terminated before that discretion can be wisely exercised.

The 81st section of the 1st article of the act concerning costs, forbids the issuing an execution for costs until there is a final judgment in the cause.

The other judges concurring, the judgment will be reversed.