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8, On an appeal when there was no party who should pay the costs judg ment was reversed without costs. Betts v. Nicholson, 1 S. 349.

9. The statute giving no more costs than damages, does not extend to cases of "trespass to try title." McGehee v, Evans, 1 S 589.

10. The statute 1827, authorizing executions to be issued from the supreme court for costs in certain cases, applies as well to judgments rendered before as to those rendered subsequent to its passage.

Anonymous, 2 S. 228.

11. The costs chargeable to a plaintiff in error who is successful, if defendant is unable to pay, includes all except the appearance of the opposite party and such acts as are done at his instance. The same rule is applied if defendant succeeds, and plaintiff is unable to pay.

Ibid.
Ibid.

12. When too much costs are taxed on an execution, the execution will, not be quashed, but will on motion be re-taxed.

13. Trespass, assault and battery-verdict for $5 damages only; full costs cannot be given unless the judge certifies; and it does not vary the case that the jury finds costs. Reid v. Gordon, 2 S. 469. 14. When the court has made an order requiring a non-resident to give security for costs, such order pre-supposes the necessary proof to have been made to entitle the party to such security.

Thompson v. Miller, 2 S, 470. 15. Security for costs may be required as well in appeals from justice as in other cases. Ibid.

16. When an order is made by the court for security for costs, not under the statute, although the time limited for it has passed, still the court may receive such security, if advantage of the omission has not been previously claimed. Jones' ex'rs. v. Wilkinson, 3 S. 44.

17. When a party undertakes the prosecution of a penal action, and sues in the name of himself and the State, it is competent for the court to render judgment for all costs against the informer if he fail to maintain the action. Casey v. Briant, 1 S. & P. 51. 18. Judgment for costs rendered against a party for whose use a suit is prosecuted without including the nominal plaintiff, is not error, the statute authorizes it. Coalter v. Bell, 2 S. & P. 358. 19. It is a good plea to sci fa against bail, that the plaintiff has not given security for costs under statute 1827.

Toulmin v. Bennet & Laidlaw, 3 S. & P. 220. 20. The statutes of this State authorizing security for costs, do not prescribe the manner in which they shall be given, and one, of whom security has been required, may legally execute a bond in compliance with law, and judgment on motion may be had against him.

Barton v. McKinney, admr. 3 S. & P. 274. 21. Under 9th section statute 1807, authorizing judgment against securities for costs, no notice is required, but if one is given, and judgment rendered on a different day, it is error.

Ibid.

22. In a proceeding by motion against a security for costs, under the statute, nothing will be taken by intendment, and every fact must appear in the record necessary to insure a recovery. It must appear that the nonresidence of the plaintiff in the suit, of whom security be required, is the cause of the suretyship.

Ibid.

23. Writ of error lies to the Supreme Court, on motion to re-tax costs. Smith v. Donalson, 3 S. & P. 393.

24. The statute 1807, on the subject of taxing in the bill of costs, the attendance of witnesses does not exclude witnesses summoned but not examined.

Ibid.

25. A motion under the statute must be made at the time, during which the judgment is rendered. Ibid.

26. The statute of 1807, includes every material fact arising in a cause —whether directly, collaterally, or incidentally; and the attendance of two witnesses to every such fact, may be legally taxed-whether examined or Ibid.

not.

27. Costs in Chancery proceedings, are within the discretion of the Chancellor, and are to be decreed in reference to the justice of each case.

other

Hunt v. Sewin & Wynn, 4 S. & P. 138. 28. Although an Appellate Court will not revise that discretion when presented alone; yet when a substantial question is brought up-a decree in respect to costs may be varied on appeal, though affirmed on every point. 29. In debt on bond to enjoin judgment, jury may assess the costs of the judgment in damages, though the same are not specified in the condition of the bond. Moore v. Hurton, 1 P. 15.

Ibid.

30. The statute which regulates the costs in certain actions when plaintiff does not recover more than $5 damages, does not embrace the action of trespass quare clausum fregit. The actions subject to the limitation are, slander, trespass, and assault and battery. Williams v. Perkin, 1 P. 471.

31. Excuses for not complying with an order for security of costs, are entirely addressed to the discretion of the court, and a decision in relation thereto cannot be reversed by the Supreme Court.

May & May v. Eastin, 2 P. 414. 32. The general rule, that a mortgagor seeking to redeem must pay costs, does not apply to a case where the mortgagee sets up an absolute title in himself.

Ibid.

33. Motion to retax costs may be submitted and entertained at a term subsequent to that at which judgment is rendered.

Briley v. Hodges, 3 P. 335. 34. An infant defendant is not liable for costs, unless he waives his plea of infancy or fails to sustain it, or if it be not available in law: but an infant plaintiff is not liable; his prochein ami, who voluntarily represents him, is. Perryman, et al. v. Burgster, 6. P. 99. 35. Writ of error will not lie to reverse a decree in Chancery for costs only; though if decree be opened for investigation on other points, it may be reformed also in the matter of costs.

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Randolph v. Rosser, 7. P. 249. 36. In Chancery the general rule is, that costs do not necessarily follow the event of the cause. The court may direct the costs to be paid by either party or jointly by both, as justice may require.

Ibid.

37. In all cases when a suit is dismissed, for an alleged want of security for costs. The reasons for granting the motion, should appear of record, that it may be seen that the case is within the statute.

Reid v. Brasher, et al. 7 P. 448. 38. It is within the legitimate powers of a court to require additional security for costs in all cases, where security can be required in the first in

stance.

Ibid.

39. For the successful prosecution of a proceeding by sci. fa. on forfeited recognizance, an attorney may claim a fee of $6, to be taxed in the bill of Smith, et al v. State, 7 P. 492.

costs.

See Trover, Trial, Right of Property.

*

Case of Read v. Carson, A. R. 17, reviewed.

COUNTY AND ORPHANS' COURT.

1. OF THE GENERAL POWERS AND JURISDICTION.

II. OF THE SETTLEMENT OF ESTATES-AND DECREES FOR SALE OF

PROPERTY.

I. Of its General Powers and Jurisdiction.

1. Upon contract with A in his life time "to clear out of the land office and transfer a certain tract of land." The statute authorizing the Orphans' Court to make an order for title, was only intended to confer a summary Chancery jurisdiction in this particular.

Lacy, adm. Sampson v. Sampson, A. R. 33. 2. The contract for title thus sought to be inforced, must be, in the words of the statute, a "bond or obligation." Ibid. 3. The court has peculiar jurisdiction over the subject of probate of wills. McGrew v. McGrew, 1 S. & P. 30. 4. The mere ascertainment by this court of the sum remaining in the hands of the representative will not divest Chancery of Jurisdiction when applied to by a distributee, (especially a feme covert) to compel the payment of the distributive share. Cherry & Bell v. Belcher, 5 S. & P. 133..

5. Has jurisdiction when the truth of an inventory is contested, and may try and decide the question, whether certain property belongs to the estate; and in doing this, it has authority to summons a jury to determine the questions of fact, on which the parties interested may be at issue.

Dobbs v. Distributees of Cockerham, 2 P. 328. 6. Has no jurisdiction by certiorari or appeal, in cases of forcible entry and detainer. Dunham v. Carter & Carroll, 2 S. 496. 7. Since the statute 1819, Chief Justice of County Court, cannot try a cause as justice of the peace. Rhodes v. Sneed, A. R. 403.

8. The authority given by the statute to judges of County Court, to grant writs of certiorari and supersedeas; is solely for the purpose of removing a cause from a justice's jurisdiction, that the party complaining may have a trial de novo. Boyd v. Woodfin, 3 S. 357,

9. And such authority to supersede executions from their own courts cannot be so extended as to supersede perpetually those issued by justices of the peace.

1bid.

10. The County Court acting Judicially has no authority to take acknowledgments of deeds of lands—and when this seems to have been done in open court, and the entry was transferred from the minutes to the back of the deed by the clerk, it was held that such acknowledgment was void. Neither the Judge or Clerk of the County Court can take such acknowledgment, but they are independent ministerial acts, which the officer before whom made must certify. Munn & Griffin v. Lewis, 2 P. 24.

11. The Orphans' Court is in general possessed of full and entire jurisdiction in relation to all testamentary causes. So upon an issue submitted to jury, a will, which had been executed, and was lost or destroyed, may be admitted to probate. Apperson v. Cottrell, 3 P. 51.

a

II. Of the Settlement of Estates, and Decrees for Sale of Property.

12. Decree ordering sale of lands of an insolvent estate, while unreversed cannot be impeached by third persons, and is evidence against them. Richardson v. Hobart, 1 S. 500. 13. The power over estates of deceased persons given by the statute, does not entirely divest Chancery of jurisdiction.

Gayle, et al. v. Singleton, 1 S. 566, 14. Cannot order sale of lands without proof that representative has given notice, &c. as required by statute.

Wiley & Gayle v. White & Leslie, 3 S. & P. 355.
See, also, 2 S. 331.

15. Decree, though made unadvisedly, will continue operative until vacated by a higher tribunal; but it does not necessarily follow from such decree being a record, that execution may issue to compel its satisfaction; this depending upon the extent of powers and organization of the court rendering Morrison, adm. v. Morrison, 3 S. 444.

it.

16. When property not contained in an inventory are decided to belong to an estate; the court has power to direct a division of such property among the distributees: or, if that cannot be done, a public sale of the property should be ordered as provided for by statute, and the proceeds of such sale should be divided. And it is error for the court to give judgment at once, against the administrator for so much cash as the value of the property assessed by the jury. Dobbs, et al. v. Distributees of Cockerham, 2 P.328.

17. In proceedings before Orphans' Court, on the settlement of estates, such entries should be made as to show at whose instance settlements are ordered; what representatives appear before the court, who claim under the estate and who are actors in the cause. Portis v. Creagh, ex'r, 4 P. 332.

18. When an executor or administrator seeks a settlement of his accounts the law requires that the vouchers shall be presented to the judge of the County Court, who shall hear, examine, and state them, and report them for allowance. The judge must then give forty days notice previous to any further action, to the end, that all persons interested may examine and if necessary contest them. And on an appeal from the decision of the County Court, the record must show that the requisitions of the statute have been complied with, unless waived by the appearance of the party. Legatee of Horn v. Grayson, 7 P. 270. 19. And when the accounts have been regularly allowed after due notice, the settlement is binding on all persons interested, and there is no authority for a re-examination.

Ibid. 20. Appraisers are to return their appraisement on oath, to the County Court, and although the record does not disclose the fact that it was sworn to, this will be presumed.

1bid. 21. The judge of the County Court is authorized by statute to grant an order for the sale of the crop in such manner as may be required by the interest of the estate. Ibid.

22. The second section, statute 1818, authorizes the County Court on petition and citation, to order the sale of lands when those entitled to the same would be less injured by the sale of the real estate, than the slaves. Couch & Robinson v. Campbell, et al. 6 P. 262. 23. Jurisdiction of the court over the real estate, is put into full exercise, when it makes an order for a citation, upon the suggestion of an administrator, for the payment of debts due by the intestate. Ibid.

24. The several statutes-1818, 1819, 1820, 1822-touching the jurisdiction of the Orphans' Court in relation to a sale of the estate of deceased persons, are all in force and must be construed together. And all acts of the

Orphans' Court upon this subject, must be derived from their authority, or otherwise they will be regarded as coram non judice.

Wyman et al. v. Campbell et al. 6 P. 219.

25. Such proceedings are in rem, against the estate and not in personam: and the statute which required no process against the particular property governs the proceeding; the thing itself, was subjected to the action of the court for the purposes of a sale so soon as it was sufficiently informed that no division could be equitably effected without injury to the heirs. Ibid. 26. And the judgment of the court, upon these proceedings, is final and conclusive until reversed on error, and cannot be impeached collaterally. Ibid. 27. The omission of administrator, to give bond, &c. as required by statute cannot be held to avoid a purchase made under an order for sale.* Ibid. 28. It is necessary that the administrator should do every thing ordered by the decree to be done previous to the sale, or the sale will pass no title but after the sale an omission to fulfil what was to be done subsequently— will not divest an innocent purchaser. Ibid.

COVENANT.

1. By written articles, dated 28th March, 1817, plaintiff agreed to serve defendant as his overseer for 12 months; for which service defendant agreed to pay him on the 1st January, 1818: held that these covenants are independent. Mullens v. Cabiness, A. R. 21. 2. In covenant it is not necessary to set out in declaration matter of defeazance, which is for the benefit of plaintiff.

Hatch v. Pittus, A. R. 50. 3. Covenant lies on articles of agreement containing penalty for non-performance, covenant for the breach, or debt for the penalty. Ibid. 4. Obligation to pay $100, nine months after date, on condition that the obligee perform certain services, the performance is a condition precedent. Taylor v. Rhea, A. R. 414. 5. On a plea of covenant performed, the defendant cannot exclude an instrument which is correctly described in the declaration, on the ground that the suit is not brought by proper parties.

Wainwright v. Townsley, et al. 1 S. 29.

6. Lies on obligation under seal to pay money.

Bussit, ex'r v. Jordan, 1 S. 352.

7. In covenant, under general issue an administrator may give special matter in evidence. Martin, adm'r. v. White, 1 S. 473. 8. Covenant lies on a promise under seal to pay a sum certain, to be discharged in good current bank notes. Jackson v. Waddel, 1 S. 579.

9. In declaration on covenant with a condition, if the action accrue on an event exclusively or mainly within the knowledge of plaintiff, he must aver and prove notice; but if defendant has an opportunity of knowing the fact, no notice of the performance of the condition is necessary.

Huff v. Campbell, 1 S. 543.

* See Wylie & Gayle v. White & Leslie, 2 S. 331, and 3 S. & P. 355.

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