
    
      Robert Walker et al. executors, v. Eli C. Bishop et al.
    
    Unless there be an appeal from the decision of the Ordinary, costs are not given by the Act of 1839.
    
      Befóte Richardson, J. at Fairfield, Fall Term, 1848.
    This Was an appeal from the decree of the Ordinary, refusing to allow costs to the appellants, who had been successful parties to a suit in his Court. The Circuit Judge dismissed the appeal, on the ground that there had been no appeal from the decision of the Ordinary, on the merits of the case: and the appellants now moved to reverse that decision.
    1 Rich. 4.
    Acts of ’39, p.42.
    
      Boyce, for the motion.
    
      Hammond, contra.
   O’Neall, J.

delivered the opinion of the Court.

In the case of Thomson v. Farr, it is very well said by our brother Wardlaw, that “ costs are in the nature of penalties, and the statutes granting them have always been strictly construed.”z

The 13th section of the Act of ’39, concerning the office and duties of Ordinary, provides: “ in all such appeals” (meaning appeals from the decision of the Ordinary,) the party, in whose favor final judgment may be pronounced by the Court of Appeals in Law or Equity, shall be entitled to tax and receive all his reasonable and proper costs and charges and expenses, in either of the said Courts, and also in the Court of Ordinary.”

It is enough here to remark that the parties claiming costs, are not within this provision.

There was no appeal from the decision of the Ordinary establishing the will. Unless there be an appeal, costs are not given by the Act, and hence the party cannot have them.

The motion is dismissed.

The whole Court concurred.

Motion refused.  