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SALT, one, &c. against RICHARDS and Others, in 1018 4 Error.-Monday, 27th of January, 1806. Tei? its When a IVrit of Error in the Exchequer Chamber is non- Error. Costs.
. Non pros. prossed for want of a transcript, the Defendant in error is Pe
Practice. not entitled to costs under the statute 3 Hen. VII. c. 10. DAMPIER moved for a rule to shew cause, why the 1806. defendunts in error should not be allowed their costs
SALT of the non prog signed by the clerk of the errors.
RICHARDS - The defendants in error brought their original ac- and others. tion in this court, and obtained fipal judgment thellth of July, 1805. Whereupon, and before execution, the plaintiff in error brought a writ of error, returdable in the Exchequer Chamber, directed to the chief justice of the King's Bench. On the 26th of Nov. 1805, a non pros was signed by the clerk of the errors for not transcribing. The costs were about 31. If the parties bad proceeded in the court of error the defendants would have obtained their full costs, upon the judgment being affirmed. After the service of the allowance of the writ of ero ror if no bail is put in, the record is certified; in order
NO. XXVIIJ. N. . - R
1806. to which, a transcript should be made out and sent witft
the writ of error to the Exchequer Chamber on the
return of the writ of error. And if it is not certified in and Others. due time, the defendant in error gives the plaintiff in
error a rule to transcribe ; and if neither is performed in due time, the defendant in error signs judgment of non pros ;* and the officers of the court have doubted whether they could allow costs on this non pros, under the statute 3 Flen. VII. c.10;which enacts, ihat“ if any defendant sue afore execution had, any writ of error to reverse any judginent in delaying of execution, then if the judgient be affirmed in the said writ of error, or the writ of error be discontinued in the default of the party, or any person who sueth a writ of error be nonsuited in the same, the said person against whom the error is sued, shall recover bis costs and damage for his delay and wrongful vexation in the same, by the discretion of the justice afore whom the writ of error is sued.”
Comen, for the plaintiff in error, shewed cause in the first instance. “ The word “justice’ is made use of jostead of the court.'+ Until the transcript comes to the conrt of Error the cause is not removed, and remains in the King's Bench. The writ of error is directed to the Chief Justice of the King's Bench, returnable in the Erchequer Chamber, which is the court afore whom the writ of error is sued, and not the court of King's Bench. This court, therefore, has no jurisdiction of the costs. Neither 'has the court of Exchequer Chamber, because the suit in error has not yet beer
* Tidd, 1093, cites the Law and Practice in Errors, p. 3, and 146, n. cites also 2 T. Rep. 17. marg. He says in that case no custs are allowed.
+ Daugi. 561. in 50d Edit. .
carried there. This is casus omissus out of the statute ; and is like costs on quashing a writ' of error before the 4 Anne, c. 16, s. 23 .1.
DAMPIER, contrà, contended that there would be in some sort a failure of justice if the court had not power to tax the costs.
But BY THE COURT, there cannot well be said to be a failure of justice in not allowing costs under a particuJar slatute, where it does not distincily appear from the statute, that it intended to give these costs. It directs the costs to be given by the discretion of the justice'* i.e. the court afore whom the writ of error is sued. Now that cannot mean the court to whom the writ of error is directed, the Chief Justice of which, is only required to certify what has passed before it. Then this court is not the proper forum by which the costs are to be given. It can only mean either the court of Chancery out of which the writ of error issues, or the court of Exchequer Chamber where it is returnable. We think it means the latter. But the question is, whether the legislature ineant to give costs, and we think it did not; for there is no cause in the Erchequer Chamber till the transcript.
LE NISI REFUSED.
c. 14, s. 2, 3.
Wilson against KNUBLEY.-Tuesday, 28th January. Pleading:
• Covenant. Stars The stutute 3. W. and M. c. 14, s. 2, 3, against fraudulent 3 W. and M. • derises, does not extend to make the devisee af lands liable in “ Devis an action of covenant, but only to actions of debt. Fraudulent de.
vise, DECLARATION, in covenant against the defendant, Wilson surviving devisee of the lands, lenements, and he
KNUBLET, reditaments, which were of John Lawson deceased,
* The Lord ELLEN BOROUGH, C. J. enquired if the par. liament-roll had been searched, to know if the original was Justiciar, which might mean Justice or Justices,
WILSON versus UBLEY.
there being no heir of the said John Lawson ; stating an indenture of release between the said John Lawson and Isabella his wife of the one part, and the said defendant of the other ; of a certain freehold messuage, &c. and other hereditaments, to hold to the plaintiff, her heirs and assigns, with a covenant that the said John Lawson was the true and lawful owner of the premises, and that they the said John and Isabella, stood lawfully and rightfully seised in his or her owa right in fee-simple, and that the premises were free from incumbrances, and that they had power to con, vey; and a breach was assigned that they the said
John and Isabella were not so seised of an indefeasi. ·ble estate, with an averment that the plaintiff had been
put to divers costs, &c. amounting to a large sum of money, to wit, to 10001, in and about her defence to an ejectment brought in this court by John Doe, on the several demises of Joseph Gardner and W. Ballen. tine, against the said plaintif and others, to recover a certain part of, to wit, an undivided third part of the said premises, the said Joseph or the said W. Ballen, tine, as a trustee for the said Joseph, being intitled thereto, and in and about purchasing such undivided share, and in making satisfaction for the repțs and profits of such share, whilst the plaintiff held and enjoyed the same under the said indenture,
DeMURRER, with causes, that the said plaintiff hath declared against the defendant as the surviving devisee of the said John Lawson, deceased, upon breaches of covenant supposed to have been committed by the said John Lawson, deceased, in his life-time, and hath not joined the heir of the said John Lawson in the said suit and declaration. And, for that it appears, iq and by the said declarațion, that the said action of the said plaintiff is not brought against the said defendant as such devisee as aforesaid, for or în respect of any
obligation or other debt due from the said testator to the said plaintiff, but for and in respect of certain co. venants of the said testator, supposed to have been en. tered into and broken by the said testator. And also, for that it is wholly uncertain what damages the plain, tiff hath sustained, or may be able to prove, for or by reason of such breaches of covenant. And also, for that it is not averred or shewn in and by the said declaration, that any lands or hereditaments which were of the said John Lawson, deceased, at the tiine of his death, have come to the said defendant as such devisee, as aforesaid, or in any manner been in the hands of the said defendant as such devisee as aforesaid, out of which the said defendunt may satisfy the damages if any such should be recovered against him as such devisee as aforesaid, by reason of the said supposed breaches of covenant in the said declaration a:entioned.
Yates, in support of the demurrer, cited Dyke v. Sweeting, * " which was an action of covenant against the defendunt as heir of his father, and not, as in this case, against a devisee.” At common law no action would lie, in covenant, against a devisee. And the statute 3 W, and M, c. 14, s. 2 and 3, which gives the action against the devisee, does not extend to actions of covenant. That statute enacts “ that all wills, Jimitations, or appointments, of or concerning any manors, lands, &c. whereof any person, at the time of his decease, shall be seised in fee-simple, in possession, &c. or have power to dispose of by bis will, shall be deemed and taken, as against such creditors ;"? (i. e. by s. !. creditors by bond or specially, binding the heirs,) to be fraudulent, and clearly and absolutely yoid. And for the means, that such creditors may be enabled to recover their said debts, in the cases before mentioned, every such creditor shall and may have
* Milles 585.