
    SOUTH CHESTER SCHOOL DISTRICT VS. HILL.
    A mandamus for costs can only issue after judgment is obtained.
    Error to Common Pleas of Delaware County. No. 95, January Term, 1878.
    The plaintiff below was the collector of school taxes for 1870 and 1871, appointed by the defendant. He gave security and received the duplicate for those years. He brought suit in 1873 against the School District, alleging that he had paid to the district more money than he was obliged to pay. The defendant plead non assumpsit, but not set off. July 12th, 1876, verdict for plaintiff for $29.75. The plaintiff had.alleged that the. district owed him over $800. The Court below, on application of plaintiff, issued a mandamus for the costs before judgment was entered, or a bill of costs actually taxed. The district then took a writ of error, complaining of first, the issuing of a mandamus before judgment, and second, the allowance of costs where the verdict was less than $100, there being no plea of set off.
    
      W. B. Broomall, Esq., for plaintiff in error,
    argued that the mandamus is irregular before judgment, Act of May 8th, 1854, Sec. 21, P. Laws 621, and cannot issue before taxation; Harger vs. Washington County, 2 Jones 251. He was not entitled to costs as the verdict was less than $ 100; Rogers vs. Ratcliffe, 11 H., 184; Act of March 20th, 1810.
    P. B. Carter, Esq., contra.
    
   . The Supreme Court reversed the decision of the Court below on April 4th, 1878 in the following opinion by

Gordon, J.:

Were this a writ of error to a judgment, we might hold the action of the Court, in permitting it to be entered with costs, as erroneous. The jury had nothing to do with costs ; the verdict was for less than one hundred dollars, and, unless the plaintiff’s claim was reduced by set off, in the absence of an affidavit, as required by the Act of 1810, the plaintiff was not entitled to costs. As however there is no judgment, the writ of error being only to the execution, we cannot pronounce authoratively upon this matter, but must leave it to the future action of the Cou rt below. The Court, however, in the absence of a judgment, permitted process of mandamus to issue against the School District. No doubt this was done inadvertantly; nevertheless it was error. The Act of May 8th, 1854, Section 21, P. Laws 621, authorizes this process to issue only after judgment; and, as this kind of execution depends wholly upon the statute for its validity, it is clear that the action of tha Court was premature. The order of the Court awarding the mandamus is reversed, aud the writ se t aside.  