
    LAGEN vs. CADWELL.
    Upon an appeal from an award of arbitrators, the costs must be actually paid in cash.
    Error to Common Pleas of Lancaster County.
    The facts of the case appear in the opinion of the Court striking off the appeal, delivered November 18, 1878, by
    Livingston, P. J.:
    •Rule to show cause why the appeal should not be stricken off. Granted January 22, 1876.
    The reasons assigned are :
    1. Because the costs had not been paid as required by the Act of Assembly.
    2. Because all the costs on said appeal were not paid in cash.
    This appeal-was not taken by Daniel Lagen, the plaintiff, in person, but by Hon. A. Herr Smith, his. counsel.
    It was taken on December 31, 1875, before William M. Slay-maker, Esq., then Prothonotary. The costs were not at that time paid or handed to the Prothonotary in cash. The entry- on the record, as originally made, shows the transaction as it occurred. After adding together the amount of the costs, the entry reads: “$19.31, charged to A. Herr Smith, December 31, 1875.” This was done at the time, on the day the appeal was taken.
    After the rule to show cause why the appeal should not be stricken off’ was granted, the above entry, as to costs, was changed so as to make it read $19.31 paid by
    charged to A. Herr Smith, Esq., December 31, 1875.
    A
    It is claimed and alleged by Mr. Smith, attorney for Mr. Lagen, that, although no money was actually paid to the Prothonotary as or for costs by Mr. Smith at the time he took the appeal for Mr. Lagen, the plaintiff, that they were paid nevertheless. Because the Prothonotary was at that time indebted to him (Mr. Smith) in a much larger amount, and after the appeal was taken, and the costs marked on the record charged to him, and charged by the Prothonotary in a day book kept by that officer, in which he kept accounts with Mr. Smith and other counsel, they settled and struck a balance, the Prothonotary on the same day handing Mr. Smith a check for the amount of said balance, $85.59, and that therefore, these costs should be considered paid, the appeal permitted to stand, and the rule to show cause discharged.
    The Act of Assemby of June 16, 1836, section 27, pamphlet L. 1836, p. 723, declares that “either party may appeal from an award of arbitrators to the court in which the cause was pending at the time the rule of reference was entered, under the following rules, regulations and restrictions, viz :
    “1. The party appellant, his agent or attorney,shall make oath or affirmation that it is not for the purpose of delay, but because he firmly believes injustice has been done.
    “2. Such party, his agent or attorney, shall pay all the costs that may have accrued in such suit or action.
    “3. The party, his agent or attorney, shall enter into the recognizance hereinafter mentioned.
    “4. Such appeal shall be entered and the costs paid and recognizance filed within twenty days after the day of the entry of the award of the arbitrators on the docket.”
    In Ellison et al. vs. Buckley, 6 Vr. 284, where the costs on the appeal were paid in part in cash, and a note given for the balance, the Supreme Court say : “We cannot avoid expressing our entire disapprobation of a Prothonotary, or any public officer, receiving in his official capacity, anything but money in payment either of costs or of sums intrusted to him under the orders of a court or other competent authority. In these and other forms he may substitute his own responsibility for actual cash, which is contrary to his duty as a public agent.”" Besides, each suit should terminate all its own litigation, and not be the cause of others by the substitution of notes or credits for actual cash. The appeal was stricken off.
    In Walter vs. Bechtol, 5 Rawle, 228, the Supreme Court say : “Payment of all taxed costs is essential to perfect an appeal, and it is error to refuse to strike off an appeal when all the taxed costs have not been paid.”
    In Carr vs. McGovern, 16 Smith, 457, the same Court declares the costs must be paid in cash ; so we said in Ellison vs. Buckley. The note of the party will not do, nor the assumption of his counsel. “The negligence or want of knowledge of the officer does not condone the errors of the party in failing to do what the law requires in order to perfect the appeal.” In that case the docket entry was “July 6, 1870, costs charged to Attorney Marshall,” and the appeal was quashed.
    In Richter vs. Cummings, in Common Pleas of Snyder County, Bucher, P. J., 1 Sol. Poster, Jr., Report, 49, it is said: “The payment of the taxed costs in cash is indispensible to an appeal from award of arbitrators. A check is not money, and the acceptance of it by the Prothonotary as such will not make the appeal good.” The appeal was stricken off. This case was afterwards carried to the Supreme Court, and the judgment of the Court below affirmed.
    In Walker vs. Graham,-24 Sm., 35, in which defendants appealed from an award of arbitrators, and paid the costs to the Prothonotary of this Court “by draft,” we struck off the appeal. The case was carried to the Supreme Court, and Williams, J., in delivering the opinion, says: “But the Prothonotary has no right to accept anything but money or cash in payment of costs, and therefore, no valid appeal can be taken from an award of arbitrators if the costs are paid by note, check, or draft, or in anything but actual cash. It is time that it was understood that there can be no valid appeal unless the costs are actually paid in money.”
    The Supreme Court having decided, as we have seen, that there can be no valid appeal where the costs are showu to have been paid to the Prothonotary by note, check, draft, or by being charged to counsel or in any other way, or by any other means than payment in actual cash, how does this case stand? The original entry, “$19.31, charged to A. Herr Smith, Esq., December 31, 1875,” shows that the costs were charged to him somewhere at the time the appeal was taken. The addenda, “Paid by,” made after the rule was granted in the language of the Court in Richter vs. Cummings, “is no part of the record, and has no more authority than if made by a stranger instead of the Prothonotary.” “The record of a case is not made up of everything that the Prothonotary sees proper to write in his docket, but it must consist of such things as are done in the progress of a cause, and which it is the duty of the officer to write upon the docket as they occur, giving the date of the transaction as it takes place, as well as the transaction itself.”' These costs were charged to Mr. Smith by the Prothonotary.
    The Prothonotary kept a book, in which he kept his own accounts with members of the bar, in which he charges them with writs issued by them, etc., and in which he credits them with moneys received for writs, with attorneys’ fees, etc., when the costs in their cases aré paid.
    That book shows that on December 31, 1875, Mr. Smith’s debits were $55.70; his credits were $160.60 ; thus, December 31, to costs in December T., 1875, No. 89 (the costs due on this appeal), $19.31; December 31, cash in full A. Herr Smith, $85.59, balancing the account — the private account between Mr. Smith and the Prothonotary — Mr. Smith reciving a check for the balance due him, and leaving the Prothonotary to pay the costs charged to Mr. Smith, thus substituting the responsibility of the Prothonotary for actual cash, which the Supreme Court say is contrary to the duty of the Prothonotary as a public agent, and ■ neither the credit of counsel nor Prothonotary will do as a substitute for the payment of costs. We shall, therefore, be obliged to make this rule absolute, and, in doing so, say, in the language of his honor Judge Williams, that it is time it was understood that there can be no valid appeal unless the costs are actually paid in money.
    
    Rule made absolute and appeal stricken off.
    Lagen then took a writ of error complaining of the action o f the court below striking off his appeal.
    
      A. H. Smith, Esq., for plaintiff in error.
    
      Henry C. Brubaker, Esq., contra.
    
   The Supreme Court affirmed the decision of the court below on May 21, 1877, in the following opinion :

Per Curiam.

The decisions of this court have settled it as the true interpretation of the act relating to appeals from awards of arbitrators that the appellant must actually pay the costs in money. In Carr vs. McGovern, 16 P. F. Smith, 457, Chief Justice Thompson said, that the want of payment of the costs taxed was an incurable defect, and that the costs must be paid in cash as said in Ellison vs. Buckley, 6 Wright, 281. So in Walker vs. Graham, 24 P. F. Smith, 35, Justice Williams said the Prothonotary has no right to accept any thing but money or cash in payment of costs. This is not a mere dictum, but it is said in determining the meaning of the law, and therefore that no valid appeal can be taken if the costs are paid by note, check, draft, charge to the attorney, or any thing but actual cash. In the case before us the Prothonotary had collected in a great many cases costs and fees which belonged to Mr. Smith, the attorney of the appellant. He owed these to Mr. Smith, as he states himself. He stated them in an account between himself and Mr. Smith, and in this account gave credit to Mr. Smith for the costs upon the appeal. This was the transaction in fact, as shown by the testimony of the plaintiff in error. We have a case, therefore, where the Prothonotary substituted his indebtedness to Mr. Smith to the amount of $19.31, the costs on the appeal, in lieu of cash. The costs were not paid in actual money, also the whole argument is to show us that, because the Prothonotary had, at sundry times, in small sums, and in various cases, received money on other accounts belonging to Mr. Smith; this is equivalent to a payment of money in this case. The.fact that he was debtor to Mr. Smith as Prothonotary — that is, received Mr. Smith’s money in that capacity — does not alter the case; the fact remains that he subsisted the sums received for account of Mr. Smith, viz., his own debt, for payment of money in this case. Now, unless we reverse the interpretation heretofore given to the law, that it means pay ment of the costs in money, and not in any kind of credit or representation of money, we must hold here that the alleged payment was not good.

Order affirmed.

Note. — But where the record states that the costs have been paid ; evidence dehors cannot be resorted to, in order to show that they are paid by check; Rice vs. Constein, 89, Penna. State Rep., 477.  