Barnet v. Ihrie

The opinion of the court was delivered by Gibson, C. J. It is decisive against the writ, that no precedent for it can lie shown, it being essentially different from the form in the Register. We are, to say the least, by no means familiar with these antiquated remedies; and we shall proceed safely only so long as we follow the footsteps of our early predecessors, discernible in the books. We have no authority to change the nature of the remedy by adopting an execution unknown to1 the law. Matter of form, such as the style of process, may undoubtedly be altered to adapt it to our practice; but there is a substantial difference between [53] an assize of nuisance, and an assize of novel disseisin, from which the form of execution employed here, has been borrowed. Seisin, actual, or symbolical, may be delivered by the sheriff without any peculiar disadvantage to the disseisor; but it certainly would be less detrimental to the author of a nuisance, to abate it himself, especially in the case of an erection that may be still rendered useful. The sheriff and his posse, could not be expected to execute the judgment with as little injury in this respect, as the owner of the property; and, before he shall be deprived of the opportunity to abate the nuisance, which the Distringas affords, the plaintiff must show good authority for the course proposed. He has not done so, and we are bound to say the execution issued erroneously. An objection is made on another ground which it is unnecessary, but not improper to examine. The plaintiff has taken out execution for certain costs to which, it is said, he is not entitled; and this involves a preliminary inquiry into the jurisdiction of a Court of Error, of the subject of taxation. According to the common law, error can be assigned only in some part of the record, and consequently not in a bill of costs. In England, where the terms of the judgment arq set out at large, a gross sum is adjudged for the costs; and a Court of Error cannot inquire into the constituent parts, because these cannot judicially be made to appear; so that where costs are recoverable at all, it cannot be alleged that too much or too little was awarded. Here, however, a different practice, recognized in a long train of decisions, has made the costs so far a matter of record, as to enable the court to judge whether'the constituent parts of the bill are specifically such as the-law allows. With us, the judgment is never reduced to form, but signed in blank, it being considered to be in fact, what in legal estimation, it ought to be; so that where particular parts of the costs' are objectionable, the remedy is not a reversal of the judgment jure tanto, unless there has been a special award of execution for those costs, but the execution is reversed, so far as respects the objectionable matter, as having issued without a correspondent judgment to warrant it. Here, the judgment is good in point of form, and has, in fact, been affirmed on error; so that the defendant would be-without remedy, if we could not lay our hands on the execution. The limitation to this is, that we will not take cognizance of an exception, which depends on matter of fact. The plaintiff’s bill proper; the sheriff’s bill, with the exception of three items for the recognitors, amounting to eighteen dollars, and attendance, two dollars and sixty-two cents; and the prothonotary’s bill, with the exception of two dollars for the judgment of the court, are all unexceptionable. There is, however, a charge of one hundred and thirty-seven dollars for the attendance of the recognitors, for which there is no colour of law. Although recognitors are sometimes called jurors, they are not so within the meaning of the fee bill, the plain intent of which, was to compensate those [54] who should be of the general panel. But the fees, even of such, are paid not by the parties, but the public; and they, therefore, are not chargeable in the bill of costs. , There is no provision for recognitors; and compensatory fees are expressly forbidden. In conclusion, there is a bill for expenses incurred in doing execution, which, as well for the reason just assigned, as because the execution was unauthorized by the law, is altogether inadmissible. Execution reversed.