Hamilton v. Aslin

Per Curiam. The general principle is that the law does not imply an assumpsit for a voluntary service; but if the performance of it has been extorted by compulsion of law, a precedent request by the party served is unnecessary. And the principle holds, though there were no legal obligation binding the plaintiff’s person, the instrument of compulsion being the jeopardy of his property or his rights, as where he pays rent for another, in order to release his own goods from a distress. How was it here? As each party is to pay his own costs on the reversal of a judgment, those paid by the plaintiff were incurred by the defendant on his writ of error. The prothonotary had a lien on the record for his costs; and without carrying it down, the plaintiff could not proceed to trial pursuant to the award of a venire de novo. What then was he to do ? If he did not pay the costs himself, it is certain his antagonist would not pay them, as long as retention of the .record in the supreme court should suspend a further prosecution of the action ; and the plaintiff could not compel the prothonolary to sue for them, or to authorize a suit to be brought in his own name. He had no choice, therefore, but to pay himself, and charge the defendant in a separate action. Judgment affirmed.