Drury v. Leland

¶1This is a question of costs. The statute makes no express provision for the case, but the rule *410which must be applied is in our opinion extremely clear, The act for the equal distribution of insolvent estates, provides, that when a creditor appeals from the decision of the commissioners, if something, but not more than the commissioners allowed, is given to the creditor by the judgment of this court, costs shall not be taxed for the creditor, but may be taxed for the executor or administrator; and that when an executor or administrator appeals from the decision of commissioners, if the same or as much as the commissioners allowed, is allowed by the judgment of this court, the cred itor shall have his full costs.(1) , These provisions we con- . gyer ag p|acecj jn the statute by way of example, to shew who was intended to be considered as the prevailing party and entitled to costs. And we entertain no doubt, that when the creditor appeals, and recovers more than the commissioners allowed him, he must be considered as the prevailing party and entitled to costs ; and when the executor or administrator appeals, if the creditor recovers less than the commissioners allowed, the executor or administrator must be considered as the prevailing party and entitled to costs. In the present case, the administrator appealed, and the sum allowed here is lesg than that allowed by the commissioners, The administrator must be allowed his costs,