
    *Denton, et ux. v. English, et al.
    
    On an appeal from the Ordinary to tlie Oourt of Common Pleas, it was referred to a jury to try tlie validity of the will; the jury found a verdict, and established the will, on which the appellant’s counsel entered up judgment and issued execution for costs, which, on motion, was set aside by the Court.
    Tried before Mr. Justice Colcock, at Richland, October Term, 1818.
    This was a motion to set aside a judgment and execution for costs, upon the ground that the plaintiffs were not authorized to enter up such judgment, or tax any costs in the case. It was an appeal from the decision of the Ordinary, on the validity of a will. The case was tried by a jury, and a verdict given, which went to establish the will, and consequently ought to have gone back to the Oourt from whence it came. But the appellant’s counsel entered up judgment in this Oourt, no damages having been given by the jury, and taxed his costs, and issued his execution. The presiding Judge ordered the proceedings to be set aside, and a motion is now made to reverse that decision, on two grounds:
    1. That the plaintiffs are entitled to costs.
    2. That defendants, taking no steps to levy proceedings after such a lapse of time, and money actually paid to the sheriff, have concluded themselves, unless they can show improper taxation, which is not pretended.
    
      Starke, for the motion. Glifton, contra.
    
      
       S. C., before 3 Brev. 147; 2 Mills’ C. R. 391; and probably a MS., cited 3 Brev. 208; as “the case of Fitzpatrick.” Nearly the same parties again, post. 681.
      See 11 Stat. 42; 2 McM. 22; 4 McC. 275; 1 Rich. 4, 25 ; 4 Rich. 30 ; 1 Strob. 176; 6 Rich. 286, 297.
    
   The opinion of the Oourt was delivered by

C.olcock, J.

At common law no costs were recoverable. If the plaintiff did not prevail, he was amerced pro falso olamore; if he did, then the defendant was in misericordia for his unjust detention of the plaintiffs’ right, and therefore was not punished with the expensas litis under that title. But it grew into a practice to give costs in the damages where damages were found, and as Lord Chief Baron Gilbert says, the justices would sometimes assess costs above the damages. 2 Bac. Abr. *tit. Costs, 33, letter A. Then came the statute of Gloucester, which * gave costs in certain eases, and afterwards a number of other sta- L tutes and Acts of Assembly ; in none of which is embraced the present case. It did not originate in our Court. It came from the Court of Ordinary, and to that Court the verdict should have been returned; there, if any, where the appellant might have asked for costs. It is analogous to an issue out of chancery. The costs do not follow the verdict as a matter of course; but the finding of the jury is returned to the Court that ordered it, where the costs are discretionary. 2 Bacon, 56. Where an issue feigned is ordered by the Court, and a verdict, the costs may be made to abide the event. But there it is considered as a case arising in the Court, and stands on the footing of all other causes originating in the Court, and may be regulated by any order. I think I may venture to say that this judgment and execution is without precedent.

The motion is dismissed.

Gantt, Johnson and HugeR, JJ., concurred.  