
    Boulwar vs. Pickett.
    Costs are not allowed on appeals from the ordinary.
    Muse Boulwar’s will was propounded before the ordinary of Fairfield, which was opposed on the ground of insanity. The ordinary decided in favor of the will, and an appeal was taken up to the court of common pleas, where the jury also found in favour of the will. The ordinary afterwards, on motion of the appellees, taxed the costs of the issue, against the appellants, who appealed to the circuit court and then the taxation was set aside, on the ground that no costs could be taxed on issues of devi-savit vel non, on appeals from the ordinary. The point was now made before this court.
    Clarke, for the motion.
    
      Peareson, contra.
   Curia, per

Nott, J.

In the case of Denton and English, 2 Nott and M'Cord 376, it was decided that the prevailing party was not entitled to costs, on an issue from the court of ordinary. It is said in that case that if costs can be allowed any where it must be by the ordinary, as the case originated in his court. It is thought to be ana-lagous to an issue out of chancery where it is said that the costs are discretionary. But the only discretion which the chancellor has is to determine in what manner the costs shall be paid. He cannot allow costs where costs are not allowed by law The law does not allow the party costs in this case, and the motion must therefore be refused. The court say nothing about the ordinary’s own costs. He is entitled to receive whatever the law allows.

Motion refused.  