Preamble. the land is recovered against him upon his own intrusion, or his own act. 1486. Statute, 3 Henry VII. Chap. 10. Costs &c. awarded to the plaintiff where the defendant sueth a writ of error.- ITEM, that where oftentimes plaintiff or demandant, plaintiffs or demandants, that have judgment to recover, be delayed of execution, for that the defendant or tenant, defendants or tenants, against whom judgment is given, or other that been bound by the said judg ment, sueth a writ or writs of error to adnul and reverse the said judgment, to the intent only to delay execution of the said judgment: It is enacted, ordained, and established, by the advice of the lords spiritual and temporal, and at the prayer of the commons, in the said parliament assembled, and by authority of the same, that if any such defendant or tenant, defendants or tenants, or if any other that shall be bound by the said jugdment, sue, afore execution had, any writ of error to reverse any such judgment, in delaying Defendant of execution, that then if the same judgment be affirmed good in prosecuting writ of error before the said writ of error, and not erroneous, or that the said writ of execution had error be discontinued in the default of the party, or that any perif judgment be affirmed, or the son or persons that sueth writ or writs of error, be non-sued in the writ discoutin same, that then the said person or persons, against whom the said writ of error is gued, shall recover his costs and damage for his delay and wrongful vexation in the same, by discretion of the justice afore whom the said writ of error is sued. ued by his default, or if he be nonsuit,shall pay costs, &c. Person im secutors, to be 1792. IN FORCE FROM ITS PASSAGE. AN ACT prescribing the mode of proceeeding in cases of impeachment: Approved December 17, 1792.-1 Litt. 134. SEC. 3. And be it further enacted, That if the person impeached, shall be acquitted by the judgment of the senate, he shall repeached if accover such costs against the prosecutors or petitioning party, to be quitted,shall recover his costs taxed by the clerk of the senate as has been heretofore allowed by against the pro- law in suits in the supreme court for the district of Kentucky; and taxed by the if the party impeached be found guilty, he shall pay to the proseclerk of senate. cutor or petitioner his costs, to be taxed in the same manner; for which costs in either case, an execution shall be issued by the clerk of the senate, and levied on the party against whom the same shall be directed, by the sheriff of the county in which he resides, returnable within ninety days from the date thereof. Execution to issue therefor. How executed and returned. 1795. IN FORCE FROM FIRST OF MARCH 1796. AN ACT to establish District courts in this Commonwealth: Approved Decem ber 19, 1795.-1 Litt. 310. ANY party to a suit praying a continuance, shall pay the costs of Party praying such continuance if granted by the court. (a) 1796. IN FORCE FROM FIRST JANUARY, 1797. AN ACT to reduce into one the several acts establishing county courts, and regulating the proceedings therein, and concerning the appointment of justices of the peace and their jurisdiction: Approved December 17, 1796.-1 Litt. 378. [SEC. 10.] The [county] court shall proceed and determine the appeal in a summary way at their next court, and give such judgment as to them shall seem just, with respect to the costs as well as the debt. IN FORCE FROM FIRST DAY OF JANUARY 1797. AN ACT to reduce into one, the several acts concerning the examination and trial of criminals, grand and petit juries, venires, and for other purposes: Approved December 17, 1796.-1 Litt. 474. SEC. 39. If the grand jury to whom such bill of indictment [for trespass or misdemeanor] is preferred shall not find the bill, or if the defendant shall appear to show cause against the filing such information, or to answer such information or indictment and the prosecutor shall not proceed further; or if the defendant shall be found not guilty by the petit jury, or a judgment be given for him, he shall recover his costs against the prosecutor, with an attorney's fee, if one was employed, and the allowances to witnesses to be taxed in the bill of costs, and may have execution for them as the manner isin civil cases. IN FORCE FROM FIRST OF JANUARY 1797. AN ACT to reduce into one, the several acts for preventing vexatious suits, and regulating proceedings in civil cases: Approved December 19, 1796.-1 Litt. 489, 497, 500, 502. continuance, to pay costs. County court to give judgment for costs on appeals. Prosecutors liable for costs in certain cases. Where there are several de [SEC. 2.] And where several persons shall be made defendants in actions of trespass, assault, false-imprisonment or ejectment and fendants in cer (a) Judgment and execution for costs for a continuance, are irregular. An order to be enforced by attachment was the regular mode to compel a party obtaining the continuance to pay the costs.-Mahony v. Holland, 2 Bibb, 243; Singleton v. Carr, 1 Bibb, 556. See now statute of 1811, giving execution. the court is sat reasonable isfied there was a tain actions, if upon the trial thereof any one or more of them shall be acquitted one is acquitted he shall recover by verdict, every defendant so acquitted, shall have and recover his costs, unless his costs of suit in like manner as if verdict had been given against the plaintiffs and acquitted all the defendants, unless the court before whom such cause shall be tried, shall be satisfied that there was reasonable cause for the making such person or persons defendant or defendants to such action, and shall order it otherwise: and in all cases where judgment shall be given for the defendant, he shall recover his costs against the plaintiff, and have execution for the same. cause for inak ing him a defendant. SEC. 3. Provided always, That nothing herein contained shall be construed to extend to executors or administrators in such case where by the law they are not liable to payment of costs of suit. (b) [SEC. 20.] ["If the plaintiff] shall at any time fail to prosecute his suit, he shall be non-suited, and pay to the defendant or tenant (besides costs) one hundred and fifty pounds of tobacco, where his 5. Under the statute of Kentucky, executors and administrators are not to pay costs out of their own estate, but of the estate of the decedent.-Beauchamp v. Davis' Ex'r. 3 Bibb, 115; Campbell's Adm'r. v. Bealor's Adm'r. 3 Bibb, 301; Manpin et ux v. Goodloe, 6 Mon. 410. 6. When the court directs a judgment to be entered against an executor or administrator, defendant for costs, without any special instruction, it means generally that the judgment shall be only de bonis testatoris; and therefore, if the clerk enroll it in general terms against the defendant in his own right, the entry should be corrected. But this should be done during the same term.-Scroggin's Adm'r. v. Scroggin, 1J.J. Mar. 364-5. law which authorizes a judgment for costs against an administrator when he sues en auter droit, or for a cause of action accrued in the lifetime of the intestate. At common law, costs were not allowed in any case. We must look to statutory enactments for the law on this subject, and we have been unable to find any statute of England, Virginia, or Kentucky, which authorizes such a judgment."-Caperton, &c. v. Callison, &c. 1 J. J. Mar. 399. 8. Upon a writ of error revived against executors, costs should be awarded against them, which had accrued prior to the death of the testator, to be levied de bonis testatoris.-Brown v. McKee's Rep's. 1 J. J. Mar. 477. Costs have been awarded by the court of appeals in various cases, against executors and administrators, defendants; but see now the above cited case of Brown v. McKee's Rep's. 9. When an executor or an administrator sues in his representative character, on a liability to the decedent, it is a general rule, that he is not responsible for costs, either out of his estate or that of the deceased. There are exceptions to this general rule. If an executor or administrator wantonly bring a wrong action, or is guilty of any other wilful default, he may incur liability for costs.-Hutchcraft's Ex'r. v. Gentry, &c. 2 J. J. Mar. 501. 10. On a judgment on a note given to "A as administrator of R," an injunction was obtained and perpetuated at the costs of A in his individual capacity; the costs were properly adjudged, the words attached to A's name were merely descriptio persona.-Reid, &c. v. Watts, &c. 4J. 7. The court of appeals say, "we know of no J. Mar. 443. place of abode is at the distance of twenty-five miles or under from the place of holding said court; and where it is more, five pounds of tobacco for every mile above twenty." [SEC. 45.] "The laws of costs shall not be interpreted as penal laws. And in any caveat where judgment shall be given for the defendant, the court shall award him his costs, and may compel the plaintiff in any caveat (if they think fit) to give security for costs, or on failure thereof, may dismiss his suit; and in case the plaintiff in any such caveat shall recover, the court may, if they think it reasonable, award costs against the defendant." 1796. IN FORCE FROM FIRST OF JANUARY 1797. AN ACT to reduce into one the several acts directing the rules and proceedings in SEC. 3. The complainant may insert in his bill as many defendants as he pleases, though they claim under different titles; but if any of the defendants disclaim, he shall pay them their costs, except for special reasons appearing, the court shall otherwise decree, and he shall also pay to each defendant any costs he may incur in consequence of any contest and claim in which he is not interested. (c) (c) A defendant in chancery should not pay costs where he has been in no default, but he should have his costs.-Clay v. Richardson, 2 Mar. 199. 2. In general, the chancellor has discretion as to the costs of a suit.-Clay v. Hopkins, 3 Mar. 488. 3. Costs are never given in suits in chancery, brought for partition merely.-Whitesides v. Lackey, 1 Litt. 82. 4. When the defendants to a bill brought to have new deeds, in confirmation of deeds lost or not registered, answer, not resisting the relief, the complainant may have his decree, but shall pay the costs; but when the defendants resist the right of the complainant, if he shows himself entitled to a decree, he shall have his costs.Blight's Heirs v. Banks, &c. 6 Mon. 210. 5. Where the defendant admits in his answer the complainant's right to a credit, but alleges his willingness at all times to credit so much, without having done so, the complainant shall not pay costs.-Garner v. Crosswait, 6. Mon. 426. 6. When surveying and division of lands have no influence in settling the merits of a controversy about land, no costs ought to be given against the unsuccessful party for them.-Williams v. Cummin's Adm'r & Adm'x. 4 J. J. Mar. 637. 7. If a bill be brought by a creditor against administrators, heirs, &c. to subject the interest of one of them to the payment of a debt, costs are to be given against the debtor only.-Stone's Rep's. v. Halley, 1 Dana, 200. 8. If a complainant sustains his claim for any thing unjustly withheld from him, costs should be decreed for him.-Shackleford v. Helm, &c. 1 Dana, 338. 9. Whenever a defendant resists the rightful claim of the complainant, he must pay costs.Stansberry v. Simmons, 1 Dana 414. May amend SEC. 4. The complainant may amend his bill before the defendant bill in certain or his attorney has taken out a copy thereof, or in a small matter afwithout terwards, without paying costs: but, if he amend in a material part after such copy obtained, he shall pay the defendant all costs occasioned thereby. (d) cases costs, and in what cases not. IN FORCE FROM THE FIRST OF JANUARY 1797 AN ACT establishing the Court of Appeals: Approved December 19, 1796.-1 Litt. 562-3. SEC. 13. In appeals and writs of error, the following rules shall If judgment be observed: or decree affirmed, appel If the judgment or decree be affirmed in the whole, the appellant lant to pay da- shall pay to the appellee ten per centum on the sum due thereby; beside the costs upon the original suit and appeal. mages and costs If reversed, the appellee to pay costs. If reversed in part and affirmed in part, costs to be apportion If the judgment or decree shall be reversed in the whole, the appellee shall pay to the appellant such costs as the court in their discretion may award. Where the judgment or decree shall be reversed in part, and affirmed in part, the costs of the original suit and appeal shall be apcretion of the portioned between the appellant and appellee in the discretion of ed in the dis (d) A party who had his suit in court a long time, when he could not sustain it for want of title, shall pay costs up to the time of filing his amended bill against others who had the title. Meredith v. Kennedy, &c. Litt. Sel. Cas. 523. 2. Parties failing upon their original bill, but succeeding upon an amendment, in which new complainants joined, have a decree for so much costs in the court of appeals, as are assessed on the amendment.-Buck, &c. v. Sanders, &c. 1 Dana, 190. (e) In reversing a decree, because the dismissal should have been without prejudice, instead of a general dismissal, each party shall pay his own costs in the court of appeals.-Barry v. Rogers, 2 Bibb, 316. 2. If an injunction be dissolved in part, upon a final hearing, the defendant at law should pay costs at law. If a decree be reversed in part, and affirmed in part,each party must pay his own costs. Brown v. Miller, 3 Bibb, 77; Campbell's Administrator v. Bealor's Adm'r. 3 Bibb, 301. 3. When a decree is reversed upon a very small matter, each party will be directed to pay his own costs. Dillon v. Dudley, 1 Mar. 67. 4. A complainant showing himself entitled to relief, though not to the extent sought, shall have his costs in the court below.-Aills v. Key, 1 Mar. 381; Ward v. Davidson, &c. 2 J. J. Mar. 444; Butler v. Triplett, 1 Dana, 155; In such case in the appellate court, each party must pay his own costs.-Duval v. Burtis, &c. 2 Mar. 123; Moody v. Dowdal's Ex'rs. 2 Mar. 213; Hammer's Adm'rs. v. Rochester, 2 J. J. Mar. 147. 5. If the defendant in error make default, he shall not recover costs, though the case be affirmed.--McDowell v. Heath's Ex'rs. 2 Mar. 223; Deatly's Heirs v. Murphy, &c. 2 Mar. 480; Lindsey v. Jordan, Litt. Sel. Cas. 32; Jones v. Todd, 2 J. J. Mar. 362. 6. When the complainant's bill shall have been dismissed without prejudice, upon which he insisted in the inferior court, but the court notwithstanding, dismissed it absolutely; although the court of appeals upon reversing such decrees, generally directs that each party shall pay his own costs, yet in such a case as this the court will dire that the plaintiff in error shall have his costs. Walton v. Fretwell, 3 Mar. 520. 7. In reversing a decree, because tine was not given infants after full age to show cause against it, each party shall pay his own costs.--Jameson v. Moseley, 4 Mon. 417. 8. A complainant having properly come into the court of chancery, shall recover his costs in that court, and a balance being due to the defendant on his judgment at law, he shall have his costs |