Majority
p. 602Jackson, ex dem. Eden, against Rathbone. moved that the costs in this cause be taxed, and that the plaintiff’s attorney refund
Headnote
: Jgment for ejectment^™ firmed on error, and writ of inquiry to assess the plaintiff’s damages intermediate judgment and affirmance : held, that the plaintiff is entitled to supreme court costs, for the writ of inquiry, &c., without regard to the amount recovered thereon.-Where a proceeding is in continuation of a suit carried to judgment, the costs of such proceeding follow, at the same rate with those allowed in the original suit.
Form of writ of inquiry on affirmance of judgment in ejectment upon error under the statate, (I R. L. 343, s- 3.)
M. Wilkins, for the defendant,
p. 603
to the defendant the excess which it should be found he had paid to the plaintiff’s attorney beyond what was legally due. The plaintiff’s bill of costs had been paid, on demand, without taxation. This cause, which was ejectment, had been removed by the defendant to the Court for the trial of Impeachments and the correction of Errors, by a writ of error, and the judgment therein, which was for the plaintiff in this Court, had been affirmed; whereupon the plaintiff, on filing the remittitur, had proceeded to execute an alias writ of inquiry,[1] pursuant to the statute, (1 R. L. 143, s. 3,) to as
p. 604certain the damages of the plaintiff intermediate the judg merit ay¿ affirmance } and the demand of the plaintiff was fui the costs of this proceeding, Ode question was,- whether the plaintiff was entitled to Supreme Court costs,- or only Common Pleas costs, without regard to the amount found by the inquisition, as whether it was under 50 dollars,- or over 50 and under 250 dollars. And it was contended, that as the act under which the plaintiff proceeded gave him costs of suit, it meant Common Pleas costs only, which were regulated by the statute, (1 R L. 344, s. 4,) and the decision in The case of costs, ( 17 John. 109 .)
L. Mitchell, contra.
The writ of inquiry is a continuation of the proceedings in the first suit. The recovery in that suit carrying Supreme Court costs, it follows that they iriúst be allowed in all the' subsequent proceedings for the purpose of carrying it into effect; With this intimation, we refer the bill for taxation to Mr. Irving, the First Judge of the Common Pleas of this city and county.
Rule accordingly.