
    Heard April Term, 1879.
    CASE No. 744.
    JOHN T. PRINCE v. J. C. SUTHERLAND.
    A sheriff is entitled to his costs as taxed and entered up in the judgment.. If there is error in the taxation it should be corrected by motion or on exceptions taken; it cannot be questioned in proceedings by rule against the sheriff.
    Before Wallace, J., at Marlborough, February, 1879.
    The defendant, Sutherland, paid the execution in this case in full, less certain costs for serving witnesses, taxed up in the judgment in favor of the sheriff. The sheriff, W. P. Emanuel, refused to enter satisfaction on the execution, and this was a rule requiring him to show cause why he so refused. The Circuit judge ruled that the charges were legal, and discharged the rule.. The defendant appealed.
    
      
      Messrs. Dudley & Newton, for appellant.
    
      Messrs Townsend & Livingston, for the sheriff.
    June 19th, 1879.
   The opinion of the court was delivered by

Haskell, A. J.

The sheriff was ruled for refusing to enter satisfaction on an execution in his hands, which it was claimed had been paid in full. He -responded for cause “ that he had charged one dollar for each witness served by him, besides mileage, and for so doing he had not been paid.” * * * *

The Circuit judge * * * ruled that the charges were legal, and ordered the rule to be discharged.” The record was not brought up, but the above is the statement of the case made. It was admitted by the counsel that the sheriff’s costs had'been regularly taxed and entered up in the judgment, and that he charged-no more than the sum so taxed. The whole proceeding by rule, therefore, was irregular, and the rule should have been discharged without deciding upon the legality of the costs taxed. Costs as taxed are legal until the taxation has been set aside; that should be done by motion or on exception taken. The sheriff was unquestionably entitled to collect the costs as taxed; but whether the taxation was proper was not in issue in the proceedings by rule, and must be considered as not having been decided. The conclusion, however, of the Circuit judge in discharging the rule is sustained. The appeal must be dismissed.

Motion refused.

Willard, C. J., and Mol ver, A. J., concurred.  