1819. SHAW MANSFIELD. T not pay costs under the statute 14 Geo. II. c. 17, for not proceeding to trial according to the course and practice of the Court in which the suit was instituted. The cases of Bennet, Administrator, v. Coker (a), Booth v. Holt (b), Cooke v. Lucas (c), are to the same effect. Jones, D. F., in support of the rule. As to the first point, the Court did not, upon the former motion, decide the question which is now brought before them. Upon the motion for judgment, as in case of a nonsuit, by the terms "without costs," the Court could only have intended the costs of the motion, and, not the general, costs of the cause. That is the ordinary meaning of the term "costs," on motions of that kind. Besides, the Court had then no materials before them to enable them to decide as to the right to costs of the cause, for the defendant's affidavit, according to the ordinary course, related only to the dates of the proceedings, with a view to shew the plaintiff's default; and no affidavits in reply could be received as to the merits which were partially and colourably introduced by the plaintiff's affidavit. Then, as to the second point, there is no doubt as to the cases that have been cited. Where a plaintiff sues as executor, having obtained probate without fraud, and prosecutes a claim which he has no reason to believe to be unfounded, he is not to be charged with costs under statute 14 Geo. II. c. 17, for not proceeding to trial, unless he has been (a) 4 Burr. 1927. (b) 2 H. Bla. 277.. (e) 2 East, 395. guilty of laches; of wilful delay. Such is the SHAW .v. feral rule. But the present is the case of a plaintiff, who fraudulently and surreptitiously obtains MANSFIELD. probate, knowing of the existence of a subsequent will, and who sués and holds to bail the executor appointed by the rightful will. This is therefore a gross abuse of the process of the Court. Executors are not excepted in the statute 23 Hen. VIH. E. 15, or in the statute 4Jac. I. c. 3, which enact, that costs shall be yielded to defendants in the cases therein mentioned " by the discretion of the Justices." But those statutes having been passed for the purpose of preventing groundless and malicious suits, the construction put upon them has, under the terms “by the discretion of the Justices," exempted front costs persons fairly and bond fide prosecuting claims as executors. This exemption proceeds upon the presumption that the executor is unacquainted with the transactions of his testator, and upon the ground that it would be an unreasonable exercise of the discretion of the Court to render the exe cutor responsible for any infirmity in claims as to the validity of which he had no knowledge. But here the plaintiff not only knew that his claim against the defendant was not founded in legal right, but he also assumed a character to which he knew that he was not entitled. It would therefore be absurd to include him in a constructive exemption that was intended only to extend to persons bona fide promoting claims in auter droit, which they believed to be just. Where an executor, being plaintiff, is guilty of laches, or wilful 3A 4 1819. SHAW v. MANSFIELD. wilful delay in the progress of a cause, he must pay costs. Harris v. Jones, (a) Hawes v. Saunders, (b) Higgs v. Warry, (c) Booth v. Holt, (d) Anon. (e), Eaves v. Mocato, (f) Rex v. Powell (g). A fortiori where an executor is not merely guilty of misconduct in the progress of the cause, but is from the very beginning culpable in commencing it, he ought to be liable to costs. Comber v. Hardcastle (h), Melhuish v. Maunder (i), Zachariah v. Page (k). Per curiam. Upon the former motion, our decision could have related to no costs but the costs of the motion. We had no materials for any adjudication as to the costs of the cause. And as to the principal question, it is clear, upon the authorities stated at the bar, that the plaintiff is not, under the circumstances, within the exemp tion which ordinarily attaches to the case of exe cutors. (a) 1 Bla. Rep. 451. (f) 1 Salk. 314. S. C. 2 Ld. Rule absolute. Raym. 866, called Elwes, Ex- (h) 3 Bos. & Pul. 115. END OF MICHAELMAS TERM, AN INDEX TO THE PRINCIPAL MATTERS. A. ACCOUNTANTS (Public). Vide ACCOUNTS (Public).-CON- ACCOUNTS (Public). 1. Public accountants, who may equity being made out by them, Colebrooke, Bart. and others v. The 2. Quere, whether the declaration Ib. 3. Vide CONSTRUCTION (of Sta- - 4. Servants of the public appointed by commission under the Crown, without any stipulated remuneration, have no legal claim to specific compensation, whether the nature of their duties are analogous with well known employments, which, when engaged in between subjects, are remunerated by established rate per cent., or otherwise, by acknowledged usage or custom (ez. gr. prize agents), or in other cases where the value of the services can be ascertained by such means. Such servants are wholly dependent for remuneration on the will of the Crown, or the judgment of those to whom competent authority may be, in that respect, delegated. with the process, or it will be considered insufficient on a motion for that purpose, however full it may be in all other respects. Jardine v. Hayes and another 239 2. If affidavits are made to run to a very impertinent and unneces sary length, the Court will make the party filing them pay a proportionate part of the costs. Ex parte Inhabitants of Henllan, in the Matter of an Insuper - 594 3. An affidavit of justification of country bail, in the jurat of which it was stated to have been sworn at Beverley (omitting the county), rejected for uncertainty. Craufurd and others v. The Attor-Boyd v. Straker ney-General and others 2 662 4. Affidavits cannot be read in reply on shewing cause. |