Rice v. Constein ( 1879 )

Mr. Justice Sterrett

delivered the opinion of the court March 31st 1879.

One of the conditions precedent to a valid appeal from an award of arbitrators is the payment of costs within the twenty days allowed by the act; and it has been repeatedly held that actual payment is required. Payment by check, as in Richter v. Cummings, 1 Leg. Chron. 52, or by draft, as in Walker v. Graham, 24 P. F. Smith 35, or by charging them to appellant’s attorney, as in Carr v. McGovern, 16 P. F. Smith 457, is not payment within the meaning of the act. In these cases, it was shown by the record that the costs were not actually paid in money; and, in Ellison v. Buckley, 6 Wright 281, the record failed to show payment in any manner. It was unnecessary therefore to resort to evidence dehors the record to 'show non-compliance with the act. The fact was apparent on its face. In the present case, however, it appears by the record that the provisions of the act were fully complied with. . The entry is: “ March 18th 1878, defendant appealed, made oath, paid costs to Prothonotary Kerns, to wit, $43.23, and entered into recognisance. Same day affidavit and recognisance filed with prothonotary.” In the deposition presented to the court below, it is stated that the word check appears in connection with the entry of the amount paid on the docket. It was conceded that the witness referred to the prothonotary’s private cash-book, and not to the "court docket or record. The entry on the latter reads as above quoted. It thus appeared affirmatively that the costs had been actually paid to the prothonotary, and all other requirements of the act complied with. It was only by going outside of the reeord that the court could be informed that a check had been given to the prothonotary, in lieu of money, on the day the oath and recognisance were filed. In theory, the record imports absolute verity, and, as a general rule, it should be so regarded in practice. It is not on every .occasion that resort should be permitted to affidavits and depositions to contradict the record or explain it away. When it is lost, or destroyed or error has intervened, and the due. administration of justice requires that it should be supplied, amended or reformed, it can and should be done in the appropriate and orderly*way.. In this case there was no necessity for resorting to extraneous evidence, the only effect of which could be to relieve the prothonotary and deprive the appellant of a trial by jury. There was clear record evidence of compliance with the requirements of the act, and this should have been considered conclusive of the fact. There was nothing in the circumstances of the case to call for any other course of action. The prothonotavy, by his own entry,- was fixed for the costs and had no just claim to relief; nor was he asking any. He was bound to pay them, on demand, to the party entitled thereto: and the rights of the appellee could not, in any manner, be prejudiced.

But, aside from this view of the case, there is another ground on which the appeal should have been sustained. While it appears from the testimony that a'check was given to the prothonotary for the costs, it was also shown that they were actually paid in cash within the twenty days. In this respect also, the case is distinguishable from those above cited.

The order of court, striking off the appeal, is reversed and set aside, and the appeal reinstated.

Justices Gordon, Paxson and Woodward, dissented.