106 Pa. 344 | Pa. | 1884
delivered the opinion of the court,
In the feigned issue to determine which of the two claimants was entitled to the fund in court, the verdict and judgment were in favor of the defendant, who thereupon filed his bill of costs amounting to $274.43. On application of plaintiff in the issue, the court ordered “ that one half of the costs, including witness fees on both sides, be paid by the plaintiff, and the other half by the defendant.” From that order the defendant appealed, and his contention is, that the costs being an incident of the judgment the court had no power to impose any part thereof on him.
No question is raised as to the validity of the judgment or regularity of 'the proceedings leading thereto. If there was, a writ of error would be the appropriate remedy. The only subject of complaint is the order made after rendition of the judgment, and that is clearly reviewable, on this appeal: Snyder v. Kunkleman, 2 Watts, 426. It was there held that after verdict and judgment in a feigned issue to determine a contested right to proceeds of sheriff’s sale, a decree of court, as to payment of costs of the issue, is the subject of revision on appeal, but not on a writ of error to the judgment. There is nothing, therefore, in the suggestion that appellant has mistaken his remedy.
At common law no costs were allowed, the amercement of the vanquished party being his only punishment; but, in assessing damages, costs were generally considered by the jury and included in their verdict. Costs, eo nomine, were first given to plaintiffs by the Statute of Gloucester, 6 Edw. I., c. 1. Afterwards, by the Statutes 23 Hen. VIII., c. 15, 4 Jac. I., c. 3, 8 and 9 Wm. III., c. 12, and 4 and 5 Anne, c. 16, the successful defendant was allowed the same costs as the plaintiff would have been entitled to, if he had recovered: 4 Minor’s Institutes, 788; 3 Blackstone, 399. With some statu
The order of the court below is reversed and set aside, at the costs of the appellee, and it is ordered that the record be remitted for further proceedings according to law.