
    Arnold’s Executor vs. Crooks.
    Appeal PROM A J. P.
    [Mr. Dana for plaintiffs: Mr. Me Gann for defendant.]
    From the Circuit Court for Grant County.
    
      April 22.
    
      An executor who sued on a cause of action that accrued to his testator, is not liable for costs. Nor are ex’ors who proceeded by a warrant on anote given to the testa tor, were defeated before the J. P. and appealed, liable to a judgment for costs, upon a verdict & judgment against them, in the trial of the appeal. The statute of 1812 does not apply to such cases.
   Chief Justice Robertson

delivered the Opinion of the Court.

There is no law authorizing a judgment for costs, as costs, in a common law suit against an executor who sued on a cause of action which had accrued to his testator, and not to himself; and an appeal from a Justice to the Circuit Court is, in this respect, like other cases. The statute of 1812 (1 Stat. Law, 675,) applies only to the Court of Appeals; and moreover, does not apply to a judgment for costs, but only prescribes the mode of taking supersedeas and appeal bonds. Wherefore it seems to this Court, that there should have been no judgment whatever for costs in this case; and even had any such judgment been proper, it should have been de bonis iestatoris, and not, as it was, de bonis propriis.

Judgment for costs therefore reversed.  