Goodrich v. Willard , 77 Mass. 380 ( 1858 )

Metcalf, J.

As the plaintiff might have given notice of a desire to be present at the taxation of the costs of which h§ complains, and might have appealed to the court from the taxation by the clerk, (Rev. Sts. c. 121, §§ 27, 28,) we are of opinion that audita querela is not his remedy for the erroneous taxation. The case is within the rule which denies this remedy to a party who has had an opportunity, and has neglected it, to avail himself of all his defences and rights. 1 Rol. Ab. 306. Com. Dig. Audita Querela, C. Faxon v. Baxter, 11 Cush. 35. Whether the plaintiff can maintain a writ of error, when, as in this case, the illegal taxation of costs is apparent on the taxed bill, we express no opinion, but leave that question for decision when it shall be regularly brought before us. It has been decided that a writ of error will not lie to correct the taxation of too many days’ attendance of the prevailing party, or too much travel and attendance of witnesses.’ Jacobs v. Potter, 8 Cush. 236. Day v. Berkshire Woollen Co. 1 Gray, 420. But the error did not, in those cases, appear on the face of the taxation.

Demurrer sustained.