Williams v. Whitmore

1 Kirby 249

• Court: Connecticut Superior Court
• Decided: March 15, 1787
• Status: Published

Opinion

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.