Travis v. Waters — 12 Johns. 500

Majority

p. 500

Jacob Travis, and others, Appellants, against Thomas Waters, R espondent.

Headnote

it a party in a di'L before “rots áre decreed, the yigbttocostsup extinguished; iecdtedr ivnh0Ia |anyt0c?arMng líé^ra'nted^as-

fcti’voí,acánnot unless they . bourt express^ at p&semi re presentatives of the deceased

So, of revivor state so, ir the bin j^yde^sed® though, in fact, they be also “g “can fy in the fa°mer ■wbicii^they sp: St.e °re" ‘e

where the i>atof The rulé, iniaiv.aüd equity, is,, that where the party ífljés before judgti-e”! tiiVcotto 8nn”Hhtheper*

t^rcsVi^toe timncX^^^d -8o not .always follow a decree pañi0'1 priylíg •

íf $ final decree is silent as to costs, tlie-questíón of costs qot having been expressly reserved, the-court will not grant then» on'.a subsequeiit.appli'ratioi), unless there'is a rehearjng on the merits. N" . ' ‘ '

Á decree, on a bill for a specific performance; ón thé coming in-of-the master’s report ad to the quantity of land to be 'conv.eyed, and the-paymeuts made, directing the balance due to be paid, and-the conveyance to be executed, is.éf naf. decree. _ ' ' . ; "

Whether an appeal will lie; from a decree of Costs only, in any case1? Qvare.

•But where a plaintiff*chancery has beengililty of Jaches, or waived his cJaim to costs, by Ms neglect andinatteotioniu obtaining the final decree,, ho appeal Will lie from the order of the. chancellor, refusing big application' for costs,'

' THIS was- an appeal from an order of the court of chancery, The bill in the -co.urt below,' was filed in 1802, in the name of _ * ' v . r Ezekiel Travis, lor a specific periormance ot an agreement tor the sale, of land,-and for ,an account agriinsi Thomas Waters, the. The bill stated a verbal agreement, and that the defendant took-possession pf the land, under-it,..and made .seve-» Tal payments.; that .the respondent had., since .commenced an action of ejectment -to recover thp possession of the premises, abd had obtained á verdict at law. . The cause having been put at-.issue,..and:.the evidence respecting. the 'payments feeing contochctory,- a feigned issue was awarded by the court or chan-eery, to ascertain the lacis as to certain payments alleged to. have been made; and on -the- trial .of the issue at law, a verdict • ' ... , • , 1 ••• . WáS found for-the pbitóff. ■

;Qn the 27th of Qotobér, 18Q8, the court of chancery decreed a conveyance, iri fee„of part of the premises, to. be -executed by the. respondent, and directed, the1 master to takean account of the record -remitted, to the . court of ■:-ehancéry.,/in order, that the quantity of land to be- conveyed, and of. the payments, and to the balance, if any, due to the respondent, on the payment of which* he was to execute llie conveyance ;, arid that the question of cos.ts.be reserved until the coming in of the .master’s-report. 1 The respondent, appealed from that..decree to'this * , - x .. XL ro i . tí court, in- 1812, and the decree was affirmed, with'costs, and the 5 7 ■ ; ' , < e -decree of this court should be carried into execution,^[10] •

■: Ezekiel Travis j the\ complainant, died, the 13th of August, 1812; and on the'„¿4th of August,-the appellants; who., are his heirs, and, devisees, .and. two of them his executors, filed their ' ‘ ' ’

p. 501

bill of revivor and supplemental bill, which having been ordered to be taken pro confessa, the court of Chancery, on the 23d of January, 1813, on the hearing of the appellants only, ordered the cause tti stand revived; and the master, as- before directed by the order of October, 1808, was ordered to take an account, and that on the payment of the balance, if any, the'respondent should execute a conveyance; that the appellants might sue out execution for the costs decreed in favour of Ezekiel Travis, by this ctiurt; and that all further directions be reserved until the coming in of the master’s report. The master made his report, which was filed the 17th of May, 1813, and the usual order entered for its confirmation, unless cause shown to the contrary in eight days. -

This order having become absolute, the appellants, without having the cause set down for hearing, obtained an order of the chancellor, entered the 3ist of May, ordering the respondent, under the directions of one of the masters of the court, on the payment or tender, by the appellants, of 13 dollars 'and 24 cents, the balance found'due by the report, and the interest thereon, from the 1st of April, to execute and deliver to the appellants a good ami sufficient deed for the parcel of land mentioned in the report, according to the decree of the court of chancery, of the 23d of January, 1813. - This decree being silent as to costs, the cause was set down for a hearing as to the matter of Costs, in September, 1813; and the chancellor, on the 8th oi' October following, decreed the payment of costs' by the respondent, including as well the costs of the original, as of the-present suit, the costs Of defending ¡the ejectment suit at law. and of the feigned issue. ’ '

On the. petition of the respondent, the present1 chancellor ordered a rehearing on the subject of costs, and after hearing the Counsel of the parties, on the 6th" of July last, was pleased to order and decree, “ that the decree of the 8th of ■October, 1813, be reversed and annulled, and that the defendant (present respondent) is not, and shall not be, liable to pay to’the complainants the costs in the said decree mentioned, or any part thereof, but that the defendant go quit-thereof, &c.; the complainants being left to bear their own costs, ¡and the costs of the former complainant, whose representative they are;’’ from this decree the complainants below appealed to this court. ‘

p. 502

The ChAmcellor gavé .the reasons -for Hs order.^[10]

Riggs, fop ,-the respondent,,

then made "a,preliminary objection, that no appeal would lie from an order for cosis only. Thp court said; they would-consider that" question, if necessary, after hearing the’ argument of the appeal., ■

Henry, for the appellant,

.0onte-tided:, that the order of the. 31st of May,- Í.813, was not a final decree,- bufa mere interlocutory order,^[23] and referred to the decree of the 83d of January,, which ‘ , * . reserved,^[24] aiiiiirtiieT-girections, until the cótinTig in of.#ie master’s report. The question as to costs,, was reserved.,!:. T-he decree pf the present chancellor, annulling’ the order of his predecessor, decides that;, "if a plaintiff, in -chancery‘‘ dies, his-representat-ives have a duty to perforin, and rights to maintain, without any poxyer pf .obtaining a reimbursement of their expenses,.-. ..

- It is not established in England, that- there can be no appeal f°r- Gosft) i® any cásethough it may be the general rule there.^[25]

, Nb sxichxule, hoxveyer, exists, -here. The principle established by this court, is, that there may be an appeal from all- orders; which, conclude, the rights of the parties.^[26] .. • ’ 1 ' '

. The., chancellor, says, that the costs xvhich’" accrued ¡before the-death' of Trayisyweve a personal duty, and there being no de? cree for costs, the- right to.them. became extinct.at his death', IB.ut this is only where the, bill of revivor is brought for Costs only,^[27] and wberp nothing further is to be done. ...The maxim,,: ctptiq personalis- mofiiyr curn persona, applies only, to- actions,: ¡arising e;«,-delicio, The epurtóf chancery, in England,,\\sy:e re*, garded the rule there as - a hard one, and have sought occasion io takp the case out' of its- operation,, -and havé said,- that-if there was "any thing executory in’-the decree, -or the costs xyere given.out of a particular fund,^[22] there can be no revivor for-costs only; ’ • • 1 - ‘ - - - ? - 1 there may be where there -is. a duty and epsts.^[8]

The respondents haying allowed the'- bill to .be taken pro con- instead of. coming, in and pleading .or3.emur.ring,,, th<iparties. are placed precisely in, the sitflátion in’ xyhich Ezekiel p •avis stood.^[9]

It may be objected, that the executorsof 'Ezefciel. T;rdvis•- are not. made parties,'though txvo.qf the appellants are,, in., fact* his e^eputprs> - The, omission ,.td. niakp- them qua executors,,

p. 503

parties to the suit, is a matter of form; arid a bill is never dismissed for want of parties, or on matter of form.^[23]

Costs in equity, rest, it is true, in the sound" discretion of the court;^[24] but xvherever1 the material issue betxveen the parties is found for the plaintiff, he shall haVe his costs at law.^[25]

Riggs and Baldwin, contra,

insisted, that though a bill of revivor be taken pro confessa, that it gave the party, in xvhose favour the suit was revived, all the rights, of the original partiess The rights obtained will depend on the character in-which the party seeks to revive. Ifit.be "as heir, executor, or"devisee, he will have the rights belonging to the character of either, as the case may be, and no other.

All the cases to be found in the English books, relative to appeals for costs, are from the decisions of the master of the rolls to the chancellor: and a petition to the chancellor himself, for a rehearing. Not a case is to be found, except the one cited from Moselfs reports, of an appeal to the house of lords, on a mere question of costs.^[26] But that cáse is nb au,1 .. tnonty.

But it is said, though this- may be the rule in England, it is not the la'w here. The words of the statute are'broad and extensive; but in the construction of them, this court have decided, that an appeal will not lie from every - order of the court of chancery. No general rule has been, settled, by the adjudi-. cations of this court, that embraces this question. This court will consider the circumstances of each case, as it arises. Costs in the court of chancery are at discretion, and xvhere that discretion has been exercised, in principle,, there is an end to the-question. This court is modelled on that of the English hous% •of- lords, as a court of appeals, arid the decisions of that tribunal have alxvays béen regarded as precedents in this court. -It would not be expedient, or good, policy, for this court to hear appeals from decisions on matters of costs merely. The alloxvance or disalloxvance of them, by the chancellor, must depend on the consideration of a variety of circumstances in the court beloxv, which cannot be made to appear here. The court of chancery, in England, rarely grants a rehearing for costs only;^[27] and never Unless in case of mistake or palpable injustice; and even in those cases great caution is used in granting .a rehearing.^[22] This court, as it cannot have the same knowledge of all the cir

p. 504

curnsianc.es, ought to- exercise much, -greater caution in the air ioxving of appeals in mere, ¡matters- of costs. ¡ ' ;.•••. '

It is said, that .the order of the chancellor, to carry the' firs fo decree -into effect, was. a mere interlocutory order,, not ..a final declee. The decree of .the court,"on .the report of the master, was a final decree, for there was a final liquidation -of accounts 5. nothing: was left .-to be ascertained, but the court wa's-prepared and able 1.0 pronounce on the whole, merits of the causé.^[23] That there was,no reservation as: to -costs, -was,-riot the -fault of -the court, but.- of the appellant. . The. decree- Was at his own instance and application, and being silent, as to, costs, there is a waiver of them. The Omission is not such a matter of form1 that it could be supplied on' application to the court. The decree being final, it cannot be, ¡altered,. any more -than a-judgment at laxv. ¡ ■ : ..

'A' revivo.r determines nothing, as to- the ultimate rights of the parties.^[24] The 'cases of Delaval v. Blackett, and Dodson v. Oliver,^[25] cited by the appellant’s counsel, show that an appeal-will not lie on k «'rere'question of costs. - The: case of Hyde v. Foster^[26] -has no application to this question, Where costs aré payable out of' a particular fund, or where.they aré given by; xvay of relief, being considered as a duty, arid not as costs, the court have obliged the representatives of the deceased party to pay the, costs, not-as Within the common rule as to''.costs,' ;but as relief.^[27]

In regard to this question, At makes no differene'e whether the decree was final- oi‘" interlocutory.. • I-n- '¿hane'ery*. .costs no more, folloxv the' success of the .party,’ than interest folloxvs the recovery of a debt; they rest -in' the sound discretion of the -court.- - -

It is the established: practice of the court'- of chancery,.'to reserve expressly,' in* its decree, whatever is not.'decided by the court; and if nothing.-is reserved, there is nothing further to decide. ' : : . ' ■

As to the costs that accrued in the lifetime oí Ezekiel Trdvis) .they neverhaye been.ascertained or decreed-, and must, of cóurse, die. with bis person ; arid .as to the costs which have accrued since, wé are willing to pay them; .

In Lloyd v. Powis,^[22] though the bill of revivor xvaS dismissed, with costs., -yet the .court: would pot allow the defendant, the

p. 505

heir, the costs which accrued in the lifetime-of his father; for it was ruled that they died with the person.

In Turner v. Turner,^[23] though the infant’s bill was dismissed, with costs, yet, On a rehearing, it was dismissed, without costs, by Lord Chancellor King. ■

If costs were decreed in this case, they would not go to the appellants, but to the personal representatives of Ezekiel Travis, deceased.^[24] The appellants are not brought before the court as executors or administrators;^[25] there are, therefore, no persons before the court who can claim the costs. But if the costs have not been decreed, they cannot be recovered after the death of the party.^[26]

As to the costs subsequent to the death of Ezekiel Travis, the chancellor has decided that each party shall pay his own .costs. Costs do not necessarily follow the obtaining an account in equity. There are various, cases in which costs are refuséd.^[27]

. Henry, in reply,

, said that this was a question of great pórtance to the suitors in chancery; and the rule of costs, in such-a case, if sanctioned, would produce great injustice. Suppose, a bill filed against a faithless trustee, and it should be made to appear that lie was. guilty of gross fraud in relation to his trust, and the complainant should die before the final decree ; his personal representatives Come into court for a ^revival, and they are told that they may have their rights, but no costs which have accrued. It maybe that the costs amount to the value of t-hpir rights. ■> -

An interlocutory order is granted upon motion, or petition, not on a hearing. A final decree does not depend on the time when it is .made, but on- its relation to the essence and merits of the cause, after a full hearing of all the parties, and when the object of inquiry has been ascertained and examined. The question as to costs was reserved, by the first decree, in the ..lifetime of Ezekiel Travis / and will a silence on the subject, in the subsequent decree, deprive the appellants of their costs ?

In courts of law, judgments are sometimes amended, where interest has been omitted. The equity of the claim;of the appellants, for costs, is apparent from the whole proceedings. How can the complainant be said to have slept on his rights, whep he was in the peaceable possession of the. land; for 15

p. 506

-years, until "hfe was disturbed by the iitigioris spirit'of'the "tiéspóndéñt» . • - •

The qiiéstion tin this appeal respects,' 1st.. The hosts which accrued prior to the ‘ death of Ezekiel Travis ¡¡ and, 2dly. The costs which have’ arisen since the appellants became parties upon the bill of revivor. ' . ' . ■

In examining ttiti claim for costs which arose prior., let thb abatement of .‘the . .suit, this oon'sideratioh: -is presented ; to.-wit, ■that the duty of conveying the land, which was established by the decree tif fhe 27'th'of Oc<o6’e^T:808;: (ándafter.wards affirmed: in this court,) became separated from the obligation to pay bests, (if any .such:obligation existed,); when the. suit abated by -the death-of-Ezekiel Travis.

The conveyance of the, land was due exclusively- to the heirs arid devisees.;.; and1 the costs (if any .were .equitably dtife) could only be claimed by. the executors or admitiistr'atqrs, tif. Ezekiel Travis. - , '■ ■ .

Upon examining "the authorities cited on the argument, ■ (Hall v. Smith, 1 Bro. Ch. Cas. 438. White v. Haywood, 2 Ves. 461. 1 Dick. 173. Kemp v. Mackrell, 2 Ves. 580. Morgan v. Scudamore, 3 Ves. 195. Lloyd v. Powis, 1 Dick. 16., and Blower v. Mowets, 3 Atk. 772.,) it appears to be an established •rulé in .equity, that where there has been no decree tor costs; and the' suit abates by the death of the .party,; the fight to, costs,. up to that time-, • is'extihg.uished, unless-the costs'are payable out of a particular fund, or are connected with a duty towards the costs.

■ ‘ According to the aflegatrans in the bill of revivor; in this case) which -was taken pfb confessa, the appellants claim only tin thé - character of heirs and devisees of Ezekiel Travis ; it not being avérred that .any person -had accepted or assumed the office of-executor or administrator. Fit follows, therefore, that thé appellants havenoright to tfre costs which accrued in the •lifetime of Ezekiel Travis;. because those .costs,, if tollo w ábíe,, áre due to his personal representatives■ and .although thé. ex-ecutors might, have -been joined with the heirs and,devisees in the bill of "revivor; yet it is cleat, that they . rimst;- (in shell" ¡case,, be deemed parties for entirely distinct objects. The heirs and devisees sue for the conveyance of the land, and the executors for the costs tif the- original suit only. '

p. 507

To test the rule, therefore, let us suppose that, upon the death of Ezekiel Travis, Waters "had voluntarily conveyed the land to the appellants; and the executors of Ezekiel Travis had then filed .their hill of revivor for costs of the original suit; could the suit have been revived - for the purpose of obtaihing those costs ? I think not. It would have been a bill of revivor for costs only; and as no decree had passed for costs, before the suit abated, the claim for posts moritur cum persona.

Whether the executors alone attempt to revive the suit, or •whether they join, with the heirs for that purpose, their object Wpuld be, in both cases,, singly, for costs, unconnected with any other duty as to them; not payable from any fund, and • not within any. ¡of the exceptions to the general rule, which is common to courts of law and equity* that where the suit abates before judgment or decree, the claim for costs is extinguished.

It would, therefore, have been useless to have directed the bill to lie over till the executors or administrators, if any, should be made parties:; nor was it necessary for Waters to plead or demur to the bill of revivor, for the want of proper parties, because the claim of the executors for costs must have been unavailing,: Besides, it is never necessary to plead or demur to a bill, if the bill itself contains no. equity, which is the, case in this bill of revivor, in regard to costs in the abated suit. ... -

Whether the appellants would have been entitled to the costs tyhich accrued since the death of Ezekiel T^dvis, if their proceedings had been regularly conducted for that object, I deem it unnecessary to decide, It is certain, however, that .a very broad discretion belongs to the chancellor in regard to costs, and that the right to costs is by no means a necessary consequence of the relief prayed for and obtained; on the contrary, there, are many cases, where equity grants the relief s.ought for, Upon condition of paying costs to the defendant.

The rule of practice, in equity, is, that if the final decree be silent as .to costs, and the question of costs is not expressly reserved, the court will not listen to a subsequent application for costs, except it be on a reheating upon the merits, which is.sometimes applied for merely.for the purpose of introducing such a reservation as to costs. (Herle v. Greenbank, 1 Dick. 370.)

p. 508

A question has been made,, whether the decree of 'the 31st of May,. 18:13,. was'final pf interlocutory ? .

According to Harrison's Practice in Chancery, (622.,) “A decree is final, when all the circumstances and facts material and necessary lo. "a complete explanation of the. matters in litigation .are brought before the court, and so fully and clearly ascertained by the pleadings on both' sides, that ‘the j court is enabled', from them, to collect the respective merits of the parties litigant, and upon full consideration of the case made opt and relied upon by each, determines between them, 'according to equity and good conscience.”

. ‘.'.A decreé' i^interlocutory, when"it happens.that some •material circumstance or fact, necessary to be made known fo the court, is either not stated in the pleadings, or so imperfectly ascertained by them, that the court, by-reason, of-■ dipt defect, is unable to determine finally between the parties'; and,- there* fore,' a reference to,-or an inquiry before, a"master, or a trial of the facts before a jury, becomes necessary tó.have the doubts occasioned by that defect removed. The court, in the mean time, suspends itsfinal, judgment, until,; by the.master’is report, or the verdict of a jury, if is enabled to decide finaliyM

According to these definitions, it seems to me his honour, the chancellor,.' was correct in deciding; that .the order of the 31st of'May,. 1813, is to be regarded as the final decree in this cause. V ^ '■ '

By the bill, Tryvis .claimed1 a conveyance for the whole parcel of land originally contracted for, and insisted upon certain .'pay ments in‘money,; Ox;en, and turnips. , By the' answer,. Waters denied any payments made on account of the land ; and, as to part of. the premises in question, he alleged, as a defence, that lie had) with tire consent of Ezekiel Travis, conveyed 50 acres of it to one person, and 150 acres to another, (not naming who those persons were.) ■ • •' i..

All. the facts stated by way of excusé, or defence, in the an*. ■ swer, were put at issue by a general replication.. :

The chancelfor ordered a trial óf feigned issues; - to- ascertain, • "... •'

1st- .Whether Travis paid,'6Q pounds, in Máyj-1787, . as. part consideration of these lands ?. ■ . -y . ..

2d. Whether, in dime,. 1.807, Travis,, iri l:ike..m£inner;. paid: 12 pounds ? " ■ ' . . .. . ■

p. 509

3d. Whether, in November, 1807,. Travis, in like manner, paid a yoke of oxen, valued at 16 pounds ? . .

The verdict upon each of these issues was in favour of Travis, thereby establishing the fact of those three payments, on account of this land, at the times there stated; but it must here be remarked, that the two other material facts put in issue by the pleadings,, were perfectly unascertained, when the chancellor made the decree of the 27th of October, 1808.

By the appellant’s case, it is expressly stated, that “ the defendant below made no proof of the conveyances alluded to in his answer, nor of the partition with David Johnson, nor qf any other conveyances, except that two discredited witnesses .said, in general terms, that Waters had sold so many acres of this land with Travis’s consent.” Nor was there any inquiry made, nor any evidence received, upon the interrogatories in the cause, in regard to the quantity or value of the turnips stated to have been delivered in part payment for the land.

By the interlocutory decree (as I consider it) of the 27th of October, 1308, it was ordered, “ that the defendant convey to the complainant, in fee, and in severalty,, by a good and sufficient deed in the- law, so much of the lands contained in said lot, No. 39, not exceeding three fourths of one half of the said lot, as the said defendant hath not become incapacitated to convey, by reason of the partition, and of the release- and conveyances aforesaid; and that it be referred to a master to-take an account of the quantity of land, part of said lot, which is to be conveyed as aforesaid.” And, further, that, the master state an account, charging the land at eight shillings per acre, with, interest,- and crediting the three several payments found upon the feigned issue, with interest; and, also, directing the master to report as to the amount of the turnips sold by Travis to Waters.

This reference to the master, therefore, was not merely to calculate interest, and state an account upon/®ed dataon the contrary, that reference involved an inquiry, by the master, whether Travis had, or had not, made a payment in turnips, oft account of the land ; and, if any, to what amount ? .It also involved, not .merely a survey, but an inquiry whether Waters had executed a deed or deeds of conveyance for any part, and how much, of the premises ip question, to any other person, as

p. 510

sel forth in his answer; no such conveyance ever having been or exhibited.

ft is clear, therefoi*e, '.that,, -by the pleadings, - and-the facts found .by the verdict on the feigned issues., it did Lot fully appear how much had-been paid by Ezekiel Travis,, on account ef the land; nor did'it' appear how much of the land contracted-for, Waters remained capacitated to: convey. These essential facts remained to be ascertained by the. master’s report, before o. final decree could bs pronounced,

The decree of the 31st of May, 18.13,, was founded on the master’s report, and the other interlocutory proceedings in. the .cause. It finally settled the respective rights of the. parlies, •upon the whole merits; and consummated; the suit; by ordering Waters, upon payment to him of 13 dollars and 34. cents, to convey to the appellants, the parcel of land in the said report, particularly mentioned arid described,’!' in the proportions previously settled. ■

This decree was taken by the appellants ex parte, as advised by their counsel.; and must be 'considered As. allowing-fhem' all that they asked for, No further equity was reserved. The appellants paid to Waters the balance repprted -to be due: to him,, pud he obeyed the decree in executing the conveyance to' them.

As 1 understand the practice; the solicitor for-the,- cómplafof ant's was irregular- in entering that order or decree, ecó:parte, 'in .vácaiio.n, zuithout notice to Ms adversary. Waters might have obtained an order'to vacate if fqr irregularity but he! waived that objection; tho| is,'he admitted the. decree to be of the.same force and effect, as . if it had been entered, upon a hearing after regular .notice, ' ’

'According, therefore, to the -settled practice in chancery, ■which, is similar'in ahalogdüs -pfócéecRbgs. ^t'-law,"-the.dláiniTor' costs was waived by .the appellants in taking a final decree'for the land.without reservation : and that claim could n^ver be’re-'. vlved, but upon an application' to open- the final decree upon its. merits. Such an application was -never made: on the ,contrary, the-.appellants" actually d'ematided,1 and accepted!- a performance' of that decree; . and after .the •.decree wa.s- thus completely executed,‘a rehearing, If applied-for,!- would not (1 presume) have been gratited. . . ‘ " ' 1

j am not prepared to say, that an appeal-, will not lie, in any ,p|se?'tir costs But, in fhjs case, the-.motion for' icosts Is

p. 511

to be considered as an application' to be reinstated in a claim which had been waived ; or as a motion to excuse a loches or default of the party claiming costs: and, in that view, I think the order of the chancellor, refusing such indulgence upon a point of practice merely, is not a subject of appeal under our constitutian, and the statute regulating appeals.

By that statute, “ any person aggrieved by any order or decree in chancery, may appeal,” &c.

To be “ aggrieved,n is to be “ injured in one’s right f and a person who waives his claim, suffers damnum absque injuria, and cannot be legally said to be “ aggrieved

The appellants have lost their right to claim costs, by their own loches, or default, in not asserting their claim according to the regular course of proceeding in chancery: and in the late, case of Sands v. Hildreth, in this court, it was decided, that if a party be concluded of his rights by his own default in the court below, this court will not sustain an appeal for the purpose of reinstating him.

I am, therefore, of opinion, that the order appealed from ought to be affirmed.

Thompson, Ch. J., Van Ness, J., and Yates, J., were pf the same opinion.

Arnold, Bicknell, Cantine, Rabcliff, .Stewart, Tibbits, and Verbryck, Senators, also concurred.

said, that as to the preliminary question, he thought the Engtish House of Lords would not entertain an appeal for costs merely. It was, however, more a question of practice than principle; and though appeals ought not to be encouraged, he was inclined to the opinion, that, under the pro-, visions of our statute, an appeal might lie from a decree for Costs.

As to that part of the decree of the chancellor, relative to the costs which accr'tied during the lifetime of Ezekiel Travis, he thought it correct: but as to the costs subsequent to the bill of revivor, he was of opinion, that the decree, so far as respected the disallowance of those .costs, ought to be reversed.

p. 512

' Clark, Crosby, Prendergast, Ross, Swift, Tabor, Van Schoonhoven, and Wendell, Senators, concurred.

A. majority ofthe court being of opinion, 'that the .decree-of; the court of chancery ought to be affirmed,- it was thereupon -ordered, Adjudged, and decreed, that; the decree, of th;e court of chancery be affirmed; that the petition and appeal be.-dismisséd, and that the appellants pay fo the respondent‘his costs, to be taxed by the clerk of this Court; and -that the respondent have his execution..therefore out of the court of chancery; arid that the record be remitted, &c.. ^ ' - ■

Judgffient.dfaffirmance.