#### *Thomas B. Chaplin*v. *Executors of Jenkins et al.*

Charleston,

April, 1848.

Where the litigation was for the adjustment of the claims of different legatees, and there was no default on the part of the executors, the decree adjusting these claims, but making no order in relation to costs, is not final in fixing the executors with the costs; they may be aft. rwards adjusted under an order of the Court on a rule taken for that purpose.

Where various claims are made, some of which arc allowed and some rejected, the rule that costs shall follow the event of the suit is inapplicable. In such case neither party is entitled to costs *as of course,*nor under the provisions of the *A*ct. They can only be obtained by either party from the other under a special order of the Court.

*Before*Caldwell, Ch. *at*Charleston, *February Fittings,*1847.

This case came up before Chancellor Johnston at Charleston, June, 1846, on the report of the Master, to whom the matters of account of the executors of the late Mrs. E. M. A. Jenkins had been referred at the previous term; and upon the coming in of this report, the Solicitor for the said Chas. Myers and Wm. Perry, executors, put in the following exceptions:

*“*1st. Because the Master charges the said executors with interest on the sums reported to be due as wages of the ne-groes of T. B. Chaplin, and the share of the crops of the Hickory Hill plantation previous to his marriage.

“ 2d. Because T. B. Chaplin is riot entitled to receive the amount found to be due to Thomas B. Chaplin, *until he*shall have rendered his account with Saxby Chaplin as one of the *97distributees of their sister, M. L. Chaplin, of whom he is administrator, but is only entitled to hare a credit to the amount which may be now found due to him in the accounts hereaf-' ter to be made between him and his brother, Saxby Chaplin.

“3d. Because T. B. Chaplin having received all of the estate of his father, and having settled with the administrator of his said father for the rents and profits of his estate, should account to his brother for the share of the said Saxby in the income of his father’s estate, as the same shall appear by the account of the same Benjamin Chaplin, administrator, from the death of his said father, until the election of the Hickory Hill plantation, made by the said Saxby; so that the true balance, as between thebrothers, shall be ascertained, before the said T. B. Chaplin shall receive from the executors of Jenkins, funds which they would otherwise hold for the credit of the said Saxby.”

After argument heard, his Honor Chancellor Johnston overruled the above exceptions, and made the following decree.

Johnston, Ch. “ On hearing the Master’s report in this case, and on motion of E. DeTreville, complainant’s Solicitor, it is ordered that the said report be confirmed. It is further ordered and decreed, that the said t fiarles Myers and William Perry, executors of Mrs. E. M. A. Jenkins deceased, do pay over to the complainant, Thomas B. Chaplin, the sum of ¡§528.31, with interest on the sum of $445.48, from the 16th Feb. 1846, (which sum is reported to be due to the said Thomas B. Chaplin by the said executors) until the same is paid.”

No appeal was taken from this decree; and the complainant’s Solicitor, two months after the rising of the Court, and after the principal and interest of the indebtedness reported by the Master, and so decreed against the said executors, had been satisfied, issued an execution against the said executors for the taxed *costs*of the proceedings so had and determined against them, and which they had refused to pay. The execution was lodged in the Sheriff’s office, but was never put into operation.

At the sitting of the Court of Equity in February, 1847, the Solicitor for the said Charles Myers and Wm. Perry, executors, presented a petition to His Honor Chancellor Caldwell, setting forth, at length, all the proceedings had in the progress of this case, from the filing oí the bill in 1843 to the date of the said petition, and praying that all proceedings against the said executors, for costs, might be enjoined, and that am order might be made as to the direction of costs. On hearing the said petition read, and after argument, His Honor Chancellor Caldwell ordered the said petition to be referred to J, W. *98Gray, Esq., one of the Masters of this Court, “ to inquire and report upon the facts therein stated, and upon the bill of costs that should be taxed in the case of T. B. Chaplin vs. Benjamin Chaplin, Senr. and Charles Myers and Wm. Perry,, executors, et al., and that the execution heretofore issued for costs in this case be henceforth enjoined until the further order and decree of this Court on the question of costs.”

In pursuance of this order, the Master made his report,, and therein submitted that the costs be equally divided between Thomas B. and Saxby Chaplin, and appended thereto a schedule of the costs. His Honor Chancellor Caldwell confirmed this report; and the complainant appealed, and moved to rescind the several orders, aforesaid, made by Chancellor Caldwell, in this case, at the sitting of the Court of Equity for Charleston, in February, 1847.

1. Because the decretal order, made by Chancellor Johnston at the sitting of the Court of Equity for Charleston, in June, 1846, after argument on exceptions to the Master’s report in the above entitled case, was *final,*and ought riot to have been opened again for new and further discussion.

2. Because the petition, ex-parte the executors of Jenkins, exhibited at the sitting of the Court of Equity for Charleston, in February, 1847, was not filed until some months after the making of said decree or final order of June, 1846; and professed to be an application for a re-hearing to determine a question of *costs*only.

3. Because the said petition being an application either for a bill of review or for a re-hearing, did not make out a case to entitle the petitioners to relief, or to induce the Court to open a case which had been maturely considered and solemnly decided.

4. Because it is contrary to the rules and practice of this Honorable Court, to grant a petition for the re-hearing of a case, after final decree, unless the application is founded upon error apparent in the decree itself, or upon new matter arising after the decree.

5. Because the application for a re-hearing of the above entitled case, if well founded, and within the rules, ought to have been made before the Chancellor who made the final decree or order in June, 1846.

E. DeTreville, for the motion.

Northrop, contra.

E. DeTreville, for appellant.

The decretal order of June, 1846, was *final.*It was acquiesced in by defendants. No appeal was taken — no motion to amend or modify was made. The decretal order is made *final*by the words of the A. A. 1808 — 7 Stat. 304. “ The orders and decrees of the said Judges in all cases *wherein appeals shall not be*
      *99
      *made to the Courts of Appeals, shall have the same effect with decrees sanctioned by the Court of*Appeals,n and is illustrated by *Harrison*v. Jenkins, cited in *Price, ex'or.*v. *Nes-hit.*The decretal order of June, 1846, was not intended to be interlocutory, because it was made when all proceedings which could be had touching the case, had been ended and closed, and was made upon exceptions to the Master’s final report of matters of account, and was not an order *quod computet,*but a decree declaring a certain sum of money *due,*and ordering the same to be paid. It was such a decretal order as might have been enforced by execution; cited *Travers*v. *Waters.*If the decretal order of June, 1846, is *final,*then all subsequent action upon it was extra-judicial. In *Price, exo’r.*v. *Nesbit,*the Court said that “ if the decree could be regarded as *final,*it never could be again examined, either by appeal, by a bill of review, or a re-hearing,” and in Bail. Eq. 284, the same proposition is asserted. He argued that the object of the petition filed in Jan’y. 1847, was a re-hearing on a question of *costs*alone. That the petition could not be regarded in the nature of an appeal — lapse of time had taken away the right oí appeal. The decree of 1846 had passed and been entered, and no notice of appeal ever given. Petition was not filed until some months after the decretal order had passed, and after execution had been taken out. This petition must be regarded either in the nature of an application for a re-hearing or for a bill of review. But it is a rule in Equity, as well set-tied by our own decisions as by the English practice, that the Court will not entertain an appeal or re-hearing for cosis only. Nor will the Court grant a bill of review, unless upon¿ the ground *oí new matter*discovered., and which could not have been used in the first instance; quoted *Burns*v. *Adm’r. ofPoag*; and in this last case the court refused to open a case after a full and final decree.' The petition at bar does not allege new matter or error, but professes to be an application for a re-hearing on the subject of *costs*alone. Bills of review have never been favored in this State, and are only granted in England on account of the expense attending an appeal.

R 459.'

ch Rep88' Bail. Eq. 98. 1 ep‘

,, Kentj! Brown’s Ch. son,1]. MeC. Ch. Rep. 210, ch. Rep.^l. Coleman and Sorrell, 2 Cox, *¡fifi*537_a ' 1 McCord’s Ch. Rep. 22. p;Jp-3 ^'tkypSj 34' and 35. 3 Des. 616.

® Mad^ch* 555¡ lAtkyn’s, Rep. 467, 1 McCo:r<^C.h. híiTcr. ltep. 377, Bail. Eq. 35-£eprg.

As to the purport and effect of the decretal order of 1846.

The decree gave no direction as to *costs*— prima *facie*costs follow a decree. In the absence of an order, the complainant is always *entitled*to his costs, if the bill has been sustained. “ Costs *necessarily*follow a decree for principal and interest.” The order of 1846 was that executors must pay principal and interest. The rule is that an executor must pay costs *de bo-nis testatoris, si non de bonis propriis,*when his defence is groundless and litigious, and this rule was adopted in *Black*v. *Blakeley.*In the case at bar the exceptions taken by executors to Master’s report were groundless and litigious, and were consequently overruled.

*100Dudl. Eq. R. ®36'

Dunkin, Ch.

delivered the opinion of the Court.

The grounds of appeal are founded on a misapprehension decree of June, 1846. The exceptions of the executors were overruled and the report of the Master was confirmed, but no order was made in relation to the costs.

In *Muse v.Peay,*the Court say, “the Act of Assembly, providing that when no direction is given with respect to costs, they shall follow the event of the suit, can only be held to apply when the decree is wholly in favor of one or the other party; when, on one side, all the relief is given which is claimed, or on the other, the bill is dismissed.” The Court then show that when various claims are made, some of which are allowed, and some rejected, the rule is inapplicable. The Act cannot be supposed to have intended that the party should pay the expence of litigating claims which he has successfully resisted. In such case neither party is entitled to costs *as of course,*or under the provisions of the Act. They can only be obtained by either party from the other under a special'order of the Court on a rule taken for that purpose. This was the course adopted in *Muse*v. *Peay,*is in accordance with the practice, and should have been pursued in this case. The bill of costs amounted to three hundred and seventy-nine dollars, of which eighty-one dollars were due to the register alone. It appears from the special report of the Master, made under the order of Chancellor Caldwell, that the litigation was for the adjustment of the relative rights of the two brothers, Thomas B. Chaplin and Saxby Chaplin, in the estates of their lather Saxby Chaplin and of Mrs. Jenkins ; that, in the language of the report, “ the executors were always ready and willing to account, and nothing like default eould be attributed to them.” Under these circumstances the Chancellor ordered that the costs should be paid by Thomas B. Chaplin and Saxby Chaplin, and that the execution against the executors of Mrs. Jenkins should be stayed or set aside. All the grounds of appeal proceed, not on the allegation that the judgment of the Court was erroneous in relation to the costs, but that the decree of June, 1846, was final and conclusive in fixing the executors of Jenkins with the payment of the costs of the proceedings, and could , only be opened *by*petition for re-hearing, or by bill of review.

For the reasons stated, this Court is of opinion that such is not the effect of the decree of June, 1846, and that this appeal must be dismissed, and it is so ordered.

Caldwell, Ch. and Dargan, Ch. concurred.

*Appeal dismissed.*