
    HENRY CLAY, vs. SAML. Q. RICHARDSON.
    
      On a writ of error to reverse a judgment of the Fayette circuit court.
    
    It is error to decree costs against a defendant who has been guilty of no fault.
    12 April, 1820.
   Judge Mills

delivered the opinion of the court.

The defendant in error filed his bill in the court below, stating that he had executed his note to James B. January, who had assigned it to Clay; who had assigned it to Bell, who had prosecuted a suit thereon to judgment against him—that the note was executed for a lot in Lexington, the title of which was in Clay, who had sold and executed his bond for a conveyance to January, who had executed a like conveyance bond to him the complainant, now defendant in error, stipulating that a conveyance was to be made when the last payment of the purchase money was made, for which last payment the note in question was executed. He then prays for and obtains an injunction, having made Clay, January and Bell defendants. Clay and January, in their answers, deny any default in them, and profess a willingness to convey when the purchase money is paid, and Bell professes his ignorance of the consideration, and requires proof. The court below having, by previous order, conditionally dissolved the injunction, on a final hearing, decreed that Clay should pay the costs of the suit, to reverse which decree as to costs only, this writ of error is prosecuted.

Wickliffe for defendant.

The complainant in the court below, on the face of his bill, shews that he was not entitled to receive a title till the money was paid, which he enjoins, and expresses no readiness to discharge it, and shews no available apology for withholding it. The answers of the defendants admit no default except in the complainant himself, and offer him a title, before they were bound to convey. On no principle, therefore, can the decree for costs against Clay be supported; and it must be, and is hereby reversed, and the cause remanded to the court below, with directions to enter up a decree in that court, dismissing the bill, as to Clay, with costs.  