The opinion of the court was delivered by
Haskell, A. J.
The sheriff was ruled for refusing to enter satisfaction on an execution in his hands, which it was claimed had been paid in full. He -responded for cause “ that he had charged one dollar for each witness served by him, besides mileage, and for so doing he had not been paid.” * * * *
The Circuit judge * * * ruled that the charges were legal, and ordered the rule to be discharged.” The record was not brought up, but the above is the statement of the case made. It was admitted by the counsel that the sheriff’s costs hadbeen regularly taxed and entered up in the judgment, and that he charged-no more than the sum so taxed. The whole proceeding by rule, therefore, was irregular, and the rule should have been discharged without deciding upon the legality of the costs taxed. Costs as taxed are legal until the taxation has been set aside; that should be done by motion or on exception taken. The sheriff was unquestionably entitled to collect the costs as taxed; but whether the taxation was proper was not in issue in the proceedings by rule, and must be considered as not having been decided. The conclusion, however, of the Circuit judge in discharging the rule is sustained. The appeal must be dismissed.
Motion refused.
Willard, C. J., and Mol ver, A. J., concurred.