Ford v. Wright

¶1delivered the opinion of the com t*

¶2It is objected in this case, that the assignment of errors is wrong. It is said that the errors in the taxation of the costs should have been particularly stated, so that any matter of fact that may be in controversy between the parties may be tried by a jury.

¶3In order to settle the question which this objection raises, we must advert to our practice in taxing and entering judgment for costs.

¶4Costs are usually taxed by the attorney of the party who is entitled to them ; and in general they are examined and allowed by the clerk of the court.

¶5When there is any dispute as to any item or items in the bill of the costs taxed, application is made to a judge, who examines and settles what is to be allowed.

¶6*589In ascertaining what is to be allowed for the attendance of a party, we always take notice judicially of the number of days the court sits at each term.

¶7So, in determining what is to be allowed for travel, we take notice of the distance and situation of the place where the party entitled to be allowed for travel resides.

¶8And we take notice of the fact, whether the defendant appeared and answered to the action.

¶9Indeed, we enquire into every fact that may be material to enable us to see whether the costs are taxed correctly.

¶10In this case, the record is brought before us in order to have a supposed error in the judgment for costs corrected. How is the error, if any, to be ascertained ? It is very obvious that it must, from the very nature of the thing, be ascertained in the same way that it must have been ascertained, had the bill of costs been laid before the court for examination and allowance before the judgment was rendered.

¶11Nor is there any thing unusual in this course.

¶12In Pelham vs. Waters, 1 Salkeld 269, it was held that on a writ of error the court must take notice of the particular laws and customs of the place where the judgment was rendered ; and the law of the place need not be returned, but the court must inform themselves of it.

¶13In Hoyle vs. Lord Cornwallis, 1 Strange 387, on error the writ of enquiry appeared to have been executed on . a day which on looking into the almanack was found to be Sunday. It was held, that the court were bound to take notice of that fact, although it was not specially assigned.

¶14Indeed, there are many things of which a court is bound to take notice judicially. 1 Starkie's Ev. 400; 1 Chitty's Pl. 216—226; Cro. Charles 178, Griffith vs. Jenkins; Cro. Eliz. 502, Broughton vs. Randall.

¶15And we are of opinion that the assignment of errors in this case is sufficient; and as it appears that too much cost was allowed, the judgment must be reversed and judgment entered for such sum as was by law taxable.