
    
      James J. Nevils vs. Daniel Hartzog. Same vs. Jacob Hartzog.
    A decree for plaintiff in sum. pro, in trespass guare dtmsum fregii '• for $2 and costs ” will not carry costs.
    Where upon such a decree, ca. sa. for costs was issued, and defendant paid the money to the sheriff, under notice to retain it until the matter could be brought to the attention of the Court, and the sheriff paid the money to the plaintiff’s attorney, under the understanding that it should be refunded if it should be decided that the defendant was not properly charged with costs; lidd that the sheriff might be compelled by rule, to refund the money to the defendant,'without proceeding being first had to set aside the ca. sa. ,
    Where a decree written on the back of a process, váries from that written on the docket, the clerk, in entering the judgment, should be governed by the decree on the docket; semble.
    
    
      Before O’Neall, J., at Barnwell, Fall Term, 1850.
    The report of his Honor, the presiding Judge, is as follows:
    “ These cases were sum. pros, in trespass quare clausum fre-git, for entering the plaintiff’s plantation, throwing down his fences, and breaking his rails. On-the trials, the presiding Judge gave a decree for $2 in each case, and this is the entry on the docket. On the back, of the procesé, in each case, is written by the plaintiff’s attorney “decree for the plaintiff for $2 and costs,” and signed by the Judge. This memorandum of the decree thus signed, is that copied in the minutes. It thus becomes the judgment of the Court. Immediately on the adjournment of the Court, the plaintiff taxed his costs, and sued out ca. sais. for the damages and costs, amounting to f84 50. The defendants were arrested, and their attorney being sick, they proposed that the matter should be postponed, until he could move to set aside the ca. sa’s. This was peremptorily refused, and they paid the money, under a notice to retain the money until it could be brought to the attention of the Court. Being required to do so, the sheriff paid the money to the plaintiff’s attorney, under the understanding that it should be refunded if it should be decided that the defendants were not properly charged with costs. Subsequently, on motion of the defendants, the clerk proceeded to retax the costs, and decided that the defendants were not liable for the same. Rules have been served on the sheriff and attorney, to shew cause why the money collected for costs should not be refunded. The case came up on the rules against the sheriff. I have thought a good deal about this matter. The only difficulty I have felt, is whether the ca. sa’s. should not have been set aside on rules against the plaintiff. But as the facts are all out, and as the sheriff wrongfully collected the money, (after notice to stay his hand,) if the defendants were not liable for the costs, I shall proceed to decide the question.
    “ By the Act of the 13th June, 1747, sec. iv. (P. L. 214,*) it is declared ‘ if any person or persons, who shall commence or prosecute any action in any of (he Courts of law in this province, shall not recover above the sum of £20 current money, such person or persons shall lose all his, her, or their costs of suit.’ To this provision, exceptions have been made by subsequent Acts ; but this case does not fall within them, it is under the law just cited. £20 currency is about equal to $12 84. It is plain, therefore, that the decrees of $2 will not carry costs. But it is supposed that the Judge’s decree will have that effect. At law, costs depend upon the result of the case; they go as by law they are given or refused. The 6th sec. of the Act of 1769, (P. L. 270,) creating the process jurisdiction, makes no alteration in this respect. The authority given to the judges ‘ to give judgment, and award execution, together with costs,’ means no more than that, in this new jurisdiction, they may give the judgment, and award the execution which followed in the usual common law causes, and that costs should be also given, when, by law, the party would be entitled to them. I am, therefore, satisfied that the defendants are not liable for the costs. The rules are made absolute that they should be refunded.”
    The sheriff appealed, and now moved that the judgment of his Honor be reversed, on the grounds :
    1. Because his Honor, Judge Withers, was correct in allowing the costs, and if his judgment was erroneous, the defendants should have appealed.
    2. Because the judgments and executions in the above stated cases were regularly entered up, and duly recorded, and have not been legally set aside or impeached, but still remain in full force and virtue, as the records of the Court.
    3. Because the judgments and executions in the above stated cases have been fully paid, and the executions returned satisfied, and the parties are out of Court, nothing remaining to be done.
    Bellinger, for the motion.
    
      
       By a strange omission, neither of these Acts is to be found in the Statutes at Large.
      The title of the Act of 1747 may be found in 3 Stat. 694, where the concluding volume is referred to for the Act itself; but in no subsequent volume is it to be found. It should have been printed in vol. 7, commencing at page 194.
      It is also true that the Act of 1769 is not in the Statutes at Large. In the “ List of all the Acts,” (vol. 10, p. 72,) its title, with reference, for the Act itself, to vol. 7, p. 197, may be found; but the Act there printed is an Act of 1768, -which is not of force. That these are distinct Acts, and that their provisions are not altogether the same, see the list of Acts in 3?. L. Nos. 1093 and 1095, and compare the 20th section of the Act of 1768, 7 Stat. 204, with the 24th section of the Act of 1769, P, L. 273. R.
    
   Curia, per

O’Neall, J.

In these cases, this Court is satisfied with the judgment of the Judge below, and concurs fully in his view of the law.

It is deemed proper, however, to remark, in addition to his observations, that the understanding, between the plaintiff’s attorney and the sheriff, that the money paid by the defendants under the notice not to pay it over, should be refunded, if it should be decided that the defendants were not properly charged with costs, places the case in the same position as if the money were now, under this rule, brought into Court by the sheriff. This obviates all the difficulty, which might otherwise have-arisen from the money being paid over.

It is perfectly plain, on the reasoning of the Judge below, that the decree for costs is against the statute law of the State. It is impossible such a judgment should stand. It is, however, due to the Judge who gave the decree below to say, that the decree on the back of the process is not what he intended. His decree written on the docket, was what the clerk ought to have copied in the minutes, and that would have carried out the Judge’s intention, to make each party pay his own costs. The decree written on the back of the process, is intended to be a guard against the mistakes which sometimes occur in entering up decrees from the docket.

The decree was written by the plaintiff’s attorney, doubtless without any intention of stating it wrong. But the moment he found that it differed from the decree on the docket, instead of enforcing it, in the way which was done, he should have waited for the decision by the Court, whether the defendants were liable for costs.

The motions are dismissed.

Evans, Withees and Whitner, JJ., concurred.

Motion dismissed.  