Le Guen v. Gouverneur , 1 Lock. Rev. Cas. 79 ( 1799 )

Lewis, J., dissented.

The decree was accordingly, that the order of the Chancellor appealed from should be reversed, and the bill of the complainants dismissed.

Costs and damages to be assessed against the respondents, having been moved for on the part of the appellant, the court took time to consider, and after argument and advisement decided :

1. That if judgment be given in the court below against the plaintiff, and he bring error, and the judgment of the court below be reversed, he recovers only the costs of the suit below; because the court of review gives such judgment as the court below ought to have given, and no other, and it would be unreasonable to compel a party in case of reversal to pay costs for the error of the court below.

2. If the plaintiff below recover, and the defendant below bring error and reverse the judgment, he obtains no costs, unless it be the costs of the court below, up to the judgment.

The decree as to costs, therefore, was that “ the respondents should pay to the appellant the costs only of the proceedings in the court below, up to the time that the order for an issue was made absolute, and that each party pay his own costs on the appeal.”