
    Williams v. Whitmore.
    DECLARATION on the following written promise, viz. “Hartford, 11th of April, 1777, I promise to pay Ezekiel Willaims, Esq. or order, whatsoever cost has arisen on account of my son, Gurdon Whitmore, being imprisoned in Hartford county goal, and his trial before the Superior Court in March last, whenever the just sum shall be ascertained (Colonel Seymour being now confined, under innoculation for the small-pox, and the files not to be obtained) the said Williams having now taken bond for the enlargement of my said son, before which said moneys and costs ought to have been paid. Witness my hand,
    “DANIEL WHITMORE.”
    The declaration alleges, that the sum of the cost was legally ascertained to be £36 3s. lid. and special notice given to the defendant on the 26th day of October, 1784.
    Plea.— That having prayed oyer of the files of the Superior Court, mentioned in the plaintiff’s declaration, and the same being read, etc. (sets forth the bill of costs at large, which appears to have been taxed September, 1786.) Therefore, at the date of the plaintiff’s writ, the “ just sum of the cost,” mentioned in the writing, on which, etc. was not ascertained; and that the defendant had received no notice of the sum thereof at that time, nor until the month of September, 1786.
    Replication.— That the bill of cost recited in the plea, was retaxed in September, 1786; and that the same had been previously ascertained and taxed in September, 1777; and that the defendant had due notice thereof, as alleged in the declaration.
    Rejoinder.— Traverse of the replication — sur-rejoinder ■ — -in affirmance and acceptance of the traverse; — -to which there was a demurrer, and joinder in demurrer; — and judgment for the plaintiff.
   By the whole Court.

This action is upon a promise to pay the cost of a certain prosecution, when it should be taxed.— The defendant pleads, that the cost was not taxed before the bringing of this suit.— The plaintiff replies, in support of his declaration, 'that it was taxed in September, 1777; and tbat tbe defendant bad notice; and tbat tbe bill is since lost from tbe files, or mislaid.— Tbe defendant traverses tbe taxing in September, 1777; and tbe plaintiff again affirms over, and accepts tbe traverse, wbicb was enough for him to do. It was not necessary tbat be should set forth a record of tbe taxing, or tbat, for bis purpose, there should have been a record of it. Tbe cost was taxable out of court, and being taxed, and tbe defendant noticed, it was bis duty, by tbe contract, to pay it, whether it ever became matter of record or not. If tbe plaintiff could not have proved tbe issue, be must have failed.— His sur-rejoinder was sufficient.  