¶1This is an application for a mandamus. The plaintiff represents that judgment was rendered against him in the District Court of Fayette county, in December, 1856 ;. that he has filed his petition for writ of error, and service was perfected on plaintiff in said judgment; but that the defendant, the Clerk of the District Court of that county, refuses to make out or deliver the transcript unless the petitioner shall first file a bond to cover the costs. The plaintiff prays for 'a mandamus to compel the Clerk to make out and deliver, the transcript. The defendant waives the issue of process *401acknowledges service, and agrees that action may be had on the petition and his answer accompanying the same.
¶2The several reasons assigned by the defendant for refusal to deliver the transcript, amount in substance to the single ground, that the plaintiff has not given bond to secure the costs of the writ of error. As the plaintiff in the District Court may be required to give security for costs, and as the appellant must secure such costs on appeal, it would seem but reasonable that the plaintiff in a writ of error should give the like security. But it has -been uniformly ruled that there is no provision of Statute to that effect; that a bond is not a condition precedent to the issuance of a writ of error; that the party complaining is entitled to the writ with or without bond. Should the plaintiff desire to suspend the execution, he must give such bond as the Statute requires ; but he may have the writ without superseding the execution. (6 Tex. R. 250.)
¶3The answer being insufficient, a peremptory mandamus in conformity with the prayer of the petition is ordered to issue.
¶4Ordered accordingly.