#### *Snoddy vs. Maupin.*

debt..

Case 7.

Error to the Madison Circuit; George Shannon, Judge.

*Judgments. Jfzd teil record,.. Variance. Practice. Costs.*

. ju”fment, appeal to this court, judg^^ntirrmñdate entered-below,and costs‘

*Pff3**°.n recovered."8

count,

Abatementacto Smith by*’sre'*

Judgment on plea *ofnul till record*for defendant.

April 18

Judgo Owsley

delivered the Opinion of the Court.

Snoddy brought an action against Maupin and Smith, in the circuit court, and recovered judgment therein, against them, for three hundred and fifty dollars debt, twenty-six dollars and twenty-five cents damages, together' with his cost expended in the prosecution of his action.. An appeal was prayed by Maupin and Smith, froni the judgment, and by *the*decision of this court the judgment was affirmed, with damages and cost. On the return of the cause to the circuit court, the opinion of this court was entered as the judgment of that, and judgment there entered against Maupin and. Smith, in favor of Snoddy, for the cost which had accrued since the first j udgment of that court.

Snoddy afterwards brought an action of debt against Maupin and Smith, .upon the judgment first recovered by him in the circuit court.

The ¿mount of the debt demanded by him in his declaration is three hundred and eighty-seven dollars and fifty-four cents, of which sum three hundred and fifty dollars is alleged in the declaration to be for debt, twenty-six dollars and twenty-five cents for damages, and the residue for costs adjudged to him by the determination of the court in the judgment sued on.

The writ which issued against Maupin and Smith was executed on the former, and as to the latter, returned by the sheriff no inhabitant, and an abatement of *the*action was thereupon entered as to Smith.

Maupin then moved the court to dismiss the cause as to him, because it was abated as to Smith, but his motion was overruled. Maupin then pleaded several pleas, one of which is *mil teil record,*upon which issue was taken by Snoddy, and a trial thereupon had by the court, and judgment rendered against Snoddy in bar of his action.

*52After the affirmance here of a judgment of tlje circuit p uirt, and entry of it below, and judgment for costs, plaintiff may maintain debt on the original judgment.

33rror of the Clerk in the taxation of the costs in such acliod is not available on the trial of the pleaofíiKteti *record. ‘*'

From that judgment Snoddy appealed.

The judgment cannot, we think, be sustained. After the judgment first recovered by Snoddy against Maupin and Smith, was affirmed by this court, there was undoubtedly nothing to prevent Snoddy from maintaining an action against them for the a-mo.unt of the judgment, and it was perfectly correct for him, as he has done in this action, to declare on the judgment first rendered by the circuit court, though the opinion of this court, affirming that judgment, was afterwards made the. judgment of that court. In declaring, the judgment ought, it is true, to be described with the requisite certainty and precision, and the only question worthy of notice, involves the enquiry, whether or not there, exists a fatal variation between the judgment described in tfie declaration and that contained in the record, which wijs produced by Snoddy on the trial of tl\e issue. ‘ ' ‘

If there be a variance of any sort, it exists between the amount of the, cost alleged in the declaration to have bean recovered by the judgment, and that contained in the record given in evidence. In other’respects there is a perfect correspondence betwen the, judgment alleged apd that proved, in every particular; and as to the cost, the amount taxed by the clerk and certified by him, with the, copy of the record used in *evidence, agrees*precisely with the amount of cost alleged in the declaration to have been aeljudged to. Snoddy i,h the, judgment. But it was contended in argument, that in taxing the cost the clerk has committed, an error to, the prejudice of Maupin anil Smith, by charging them with greater sums than are allowed by law for like, services, and hence, it was insisted that the, re.cord use.d in evidence, went not to prove a judgment for the amount of cost alleged in the declaration, and that in consequence of the variance in respect to the amount of cost, between the judgment alleged in the declaration and that proved by the record, the court was correct in deciding the issue against Snoddy. *Whether*or not) in taxing the cost, such an error has been committed by the clerk, we shall not stop to enquire,,. *53because, if there be such an error, it forms no sufficient reason for deciding the issue against Snoddy. The taxation of cost, is, by law, confided to the clerk, and to allow an error in the taxation, to defeat an action predicated upon its correctness, would be highly unjust and absurd.

Such error may be shewn to be recover-eel in tho Retl0n-

*Caperlon,*for plaintiff; *Turner,*for defendant.

The amount to be recovered may be less than the sum demanded in the declaration, and it would tend more to the ends of substantial justice, to allow the error of the clerk, if any there be, to be used as a defence, in reducing the amount claimed in the decparation.

The judgment must *be*reversed, with cost, the cause remanded to the court below, and further proceedings there had, not inconsistent with this opinion.