25 Pa. 347 | Pa. | 1855
The opinion of the Court was delivered by
After some conflicting decisions, it was settled in equity that the costs of issuing and executing the commission, in partition, and of making out the title to the several parts of the estate, should be borne by the parties in the proportions in which they were respectively entitled to the estate: Calmady v. Calmady, 17 Ves. 555, note 1; Agar v. Fairfax, 17 Ves. 533. But no costs were given up to the hearing of the bill: Baring v. Nash, 1 Ves. & Bea. 554. For it was thought that one party ought not to bear any portion of the charges incurred, in respect to previous collateral questions raised by the other: Whaley v. Dawson, 2 Sch. & Lefr. 371. In accordance with this rule, it would seem to be clear, that where the bill was dismissed on the ground that the plaintiff had no interest in the estate, or no right to partition, he could have no claim upon the defendant for any portion of the costs. But whatever may be the rule in equity, it was settled in Stewart v. Baldwin, 1 Penn. Rep. 461, that where a defendant obtains a verdict in a writ of partition at law, on the plea of non tenent insimul, he cannot recover costs from the plaintiff. That is precisely the case before us now, and the only question is, does the Act of 11th April, 1835, apply to cases of this kind. That .Act declares that “the costs in partition shall
Judgment reversed, and judgment entered here for the plaintiff in error non obstante veredicto, on the point reserved.