Richardson v. Cassilly

Per Curiam. A bill of costs is evidence to charge a party with a debt, only because the act of taxation is in the nature of an adjudication. Though it be the immediate act of the officer, it is in contemplation of law, the act of the court; and it is even its immediate act, when an appeal has been taken. What, then, is legitimate evidence of taxation? Not an endorsement to denote that the paper was filed — for that is a matter of course in all cases — nor yet testimony by one in the service of the prothonotary, that it is the practice of the office not to issue execution for costs without previous taxation, where the bill does not exceed a certain sum, in order to raise an inference of taxation, from the fact of execution. To say nothing of the gross irregularity of such a practice, it is enough that our adjudications are not to rest on inference or parol. The usual memorandum of taxation ought to appear at the foot of the bills, without which the fact is not to be intended. Then as to the charge. The plaintiff certainly had no title to recover the supreme court costs by the terms of the award. But it is supposed that he was compelled to pay them by the necessities of his position, and that he may therefore recover them as so much paid to the defendant’s use. The prothonotary had a lien on the record; but the plaintiff ■had not, as in Hamilton v. Aslin, 3 Watts 222, a special object to accomplish in carrying it down. Had he desired to have his award again, in order to enforce it by action, it would have been detached and delivered to him; or its production might have been enforced by subpoena directed to the officer. In any event it would have been as accessible in the supreme court, as in the court below; and the payment was therefore merely voluntary. Judgment reversed, and a venire de novo awarded.