12 Pa. 251 | Pa. | 1849
There can be no doubt that error lies on an award of execution: 1 Lord Raymond, 98; Cassell v. Duncan, 2 S. & R. 57; and it has been expressly determined this rule embraces a fi.fa. improvidently issued for costs not legally due, if that be apparent of record: Barnett v. Ihrie, 1 Rawle, 53. The objection made to the removal of these executions is therefore untenable, and the question whether they were improvidently issued, is properly presented for determination here.
The record brought up shows that George Harger, one of the defendants, was acquitted of the offence of which he stood indicted in the Quarter gessions of Washington county, but the jury directed him to pay the costs of prosecution. This was on the 29th of May, 1844. He was not sentenced in the usual form to pay the costs, or to give security to the sheriff of the county, to pay them within ten days; hut the day after his acquittal, he and the other defendants executed the bond with warrants of attorney, by virtue of which the judgment now sued was subsequently entered. It-is objected that this was intended to secure only the payment of such costs of prosecution as Harger, the defendant in the indictment, might he sentenced to pay by the Court in which he was tried; and no sentence having been in fact pronounced, the condition which lies at the foundation of the judgment was never forfeited. But this position is clearly erroneous. The condition is that the obligors shall “ pay the costs imposed on George Harger by the Court of May gessions, 1844, 'of which he, the said George Harger, in this case stands charged.” This very clearly has reference to the verdict of the day before, and to the agreement of the commissioners of the county to relieve the defendant by an application of the public
This ground is not however that urged principally in this Court, nor indeed, as it is said, in the Court below. There, as here, the motion to set aside the executions was based mainly upon the legal position that a fi. fa. cannot regularly be issued under the judgment confessed against the defendants, until the sum due for costs be in some way definitively ascertained. In this we think they are right. But their claim to be let into a defence under the judgment by a plea of payment, with leave to give equitable matter in evidence, is wholly inadmissible. What equitable matter could be introduced into an inquiry touching the sum due for legal costs, it is difficult to imagine'; and a jury sitting in the Common Pleas, to tax a bill of costs which accrued in the Quarter Sessions, would, to say the least of it, present a novel spectacle. In truth, the idea of an issue to be directed by the Common Pleas, was abandoned on the argument, for the suggestion that the plaintiffs should be put to their scire facias, under the provisions of the 8 and 9 William 3. But Gray v. Longstreth, 1 Watts, 60, cited for the plaintiffs in error, shows that judgments entered by virtue of warrants of attorney are not within the purview of that statute; and, in answer to another suggestion, nothing is hazarded in saying, that the present does not present a case for a writ of inquiry of damages. What then is the proper course to be pursued in ascertaining the sum to be levied? It appears to us that, in the instance before us, this inquiry admits of easy answer. Every Court possesses the inherent power to determine, in a summary way, the legal costs that have accrued in the course of any judicial proceeding had before it. Under an unvarying practice this is effected by the taxation made by its prothonotary or clerk, from whose conclusions an appeal lies to the Court itself. Of course, in the Courts of Quarter Sessions this duty is discharged by their
And now, to wit, Nov. 2d, 1849, it is ordered that the said writs of' fieri facias, issued sur the judgment confessed in this case, be set aside and annulled, and that the record be remitted to the said Court of Common Pleas, with directions to proceed thereon.