
    Commonwealth ex relatione Thomas against the Commissioners of the County of Philadelphia.
    The clerk <jf the Quarter Sessions is not entitled to a fee of eighteen and three-quarter cents for each certificate given to a witness for the Commonwealth, of his attendance on an indictment on which the county is to pay tne costs, when such certificate is not given at request of the County Commissioners, though they refuse to pay the witnesses without it.
    RULE to shew cause why a mandamus should not be issued to the defendants, commanding them to draw an order on the County Treasurer in favour of Erasmus Thomas, Clerk of the Court of General Quarter Sessions of thé county of Philadelphia, for the sum of 2 dollars 87! cents, for fees due to him from the county of Philadelphia.
    Rawle, for the defendants,
    shewed cause.
    
      Wurts, argued in support of the rule.
   The opinion of the Court was delivered by

Tirghman C. J-.

This case comes before us on a rule on the Commissioners of the county of Philadelphia, to shew' cause why a mandamus should not be issued, commanding them to draw an order on the County Treasurer to pay to Erasmus Thomas, Clerk of the Court of General Quarter Sessions, the sum of 2 dollars and 87! cents, for fees due to him from the county. These fees were for certificates given to witnesses who attended on behalf of the Commonwealth, shewing the number of days they attended, and the amount of money they were entitled to receive from the county. The Clerk claimed a fee of 183 cents for each certificate. The case depends upon the fee bill passed the 22d February 1821, sect. 9, by which, the Clerk of the Quarter Sessions is allowed “ for taxing a bill of costs, other than Clerk of the Sessions, 18$ cents.” The construction put upon this law by the Clerk is, that he is entitled to a fee of 18$ cents from the Commissioners, for every bill of costs taxed by him, that is to say ; for every separate bill for the Sheriff, the Attorney, the crier, and each witness. But this is contrary to the decision of this Court, in the case of The Commonwealth ex. rel. Coxe v. The County Commissioners. It was there determined, that the Clerk was not entitled to charge the Com-' missioners for more than one bill of costs, unless they requested him to make out a bill for each witness, and then they must pay for it. The Commissioners made it their practice not to request the Clerk to make out separate bills for each witness ; but as they refused to pay the witnesses unless a certificate of their attendance at Court was produced, the witnesses were in the habit of obtaining a certificate from the Clerk, for ^ach of which he charged the fee allowed by the Act of Assembly for taxing a bill of costs. When the case of Coxe v. The Commissioners was decided, the fee was 25 cents, but it was afterwards reduced to 18$ cents by the Act of 22d February, 1821. The Legislature disapproved of this charge against the witnesses, and enacted, by the Act of 16th March, 1820, sect. 2, “ that no prothonotary or Clerk of any Court in this Commonwealth, shall demand of any witness, any sum for a certificate that he has served as a witness.” Being thus prohibited from faking a fee from the witnesses, the Clerks returned to the charge against the Commissioners of the county, to which they say they are entitled under the decision in Coxe’s Case; because the Commissioners by refusing to pay the witnesses unless a certificate from the Clerk is produced, do substantially reqüest the Clerk to make out the certificate. But it is not so. The witnesses demand the certificate, which the Clerk is obliged to give them -without fee, by virtue of the Act of March, 1820,- and this certificate being presented to the Commissioners, the money is paid, without further trouble. It is true, that this mode of proceeding throws labour on the Clerk without compensation. But it is presumed, that upon the whole, the office is profitable. Be that as it may, he can charge nothing that is not allowed in the fee bill. It is the opinion of the Court, that according to the rule established in the case of Coxe v. The Commissioners, the county ought not to be charged with the fee claimed by the Clerk in the present instance, and therefore the rule to shew cause why a mandamus should not be issued, must be discharged.

Rule discharged,  