#### HAMILTON HESTER vs. BENNETT HESTER.

The costs which the act of 1818, 1 Rev. Stat. ch. 4, sec. 26, requires to be taxed double, against a party who appeals to the Supreme Court, and fails to carry up and file the record in proper time, are only those of the Supreme Court.

This was a Rule, to shew cause why an execution should not be set aside, and satisfaction enter'ed of the judgment on which the same was issued, submitted to his honor Judge Dick, at Granville, on the last circuit, upon the following statement of facts:

An issue was made up in the County Court of Granville, between Bennett Hester and Hamilton Hester, to try whether a paper writing, offered for probate, was the last will of Benjamin Hester, deceased. This issue was tried in the County Court, and an appeal taken from the- judgment rendered' in that Court to the Superior Court, where it was tried, at September Term, 1838, and a verdict being found in favor of the will, the said Hamilton obtained an appeal to the Supreme Court, and failing to file the transcript in the clerk’s office of that court, within the time limited by law,.the said Bennett procured a certificate of the failure, filed it in the office of the clerk of the Superior Court, and- demanded an execution for double costs, according to the- Act of Assembly, concerning appeals to the Supreme Court, (1 Rev. Stat. ch. 4, see. 26'.) An execution was accordingly issued for double the whole costs in the County and Superior Court,, amounting to the sum of g672 94 cts., which was the execution referred to in the above rule. The said Hamilton paid *188to the sheriff the sum of $366 47 cts., being the amount of costs $336 47 cts., and $30 as the double of the usual amount of costs upon appeals, in the Supreme Court, insisting that the costs to which he was justly liable were thereby satisfied, obtained this rule. The said Hamilton, by his counsel, insisted that the costs which were to be doubled, \yere those of the Supreme Court, and as he had paid such amounf, he claimed to hare his rule made absolute, without any further payment-, and if this construction be in law the true one, it was admitted that the payment was in full of the costs, and the rule should be made absolute.. — . But the said Bennett denying that to be the construction, insisted that the costs to be doubled were all the costs of the two courts, (except the fees of the witnesses for the said Hamilton,) which are as follows:

Single costs in the County Court $96:19

Court or'officef’s gosís in that court 81:95

Witness of the said Bennett, in the issue in that court 10:88

$189:02

Single costs of the Superior Court $240:08

Court or officer’s costs in that court 53:10

Witneses of said Bennett, pi the issue in that court 121:48

Making amount of costs for which exe- -- $414:86

cution should be $603 88

A.nd as the sum paid was only $366:47

Therefore there should be the further sum of 237:41 paid on the execution.

And the said Bennett further insisted, that if this should not be correct, then the court costs of both courts should be doubled as follows:

Single costs of both courts $336:47

Officers, or court costs of the County C’t. $81:95

Do do of the Superior C’t, 53:10

---$135:05

$471:52 *189And then there should be paid the further sum'of $105 cts., in addition to the payment already made. And the said Hamilton insisted that if his construction as above were not correct, then he contended that the costs to be doubled, were costs taxed in the Superior Court, and consequently they were only the costs incurred in that court, and not in the County Court — and if so, they must be computed as follows:

Single costs of both courts $336:47

One half the officers costs of the Superior Court 26:55

$362:92

And so the exectuion was satisfied by being overpaid — or else thus:

Single costs $336:47

Half officers’ costs $26:55

Half taxed witness costs 60:74

87:29

$423:76

And then the execution would he satisfied by the payment of the additional sum of $57 29 cts.

And it was agreed that his Honor should direct satisfac-. -tion to be entered upon the execution, either without further payment, or with such further payment as upon either of the foregoing views should seem to him to be just, or to order such other payment, or give such other directions in the premises touching the re-taxation of the costs, setting aside the execution, or causing satisfaction of the judgment to be entered, as to him should seem meet and proper.

And thereupon his Honor, being of opinion that the costs contemplated by the statute to be doubled, were the costs for which judgment passed in the Superior Court, (no matter in which court the said costs may have accrued,) excluding therefrom the witness tickets, declared that tfie true sum for - which the execution should have issued, was $471:52

from which deducting 366:47

■ the sum paid, there remained due 105 05 *190and ordered, that upon the payment into Court, to the use of the said Bennett, of the said sum of $105 05, the execution should be superseded, and satisfaction entered of thejudgment — and should the same not be paid, then it was ordered that the clerk should tax the costs according to this opinion, at $471 52, and issue execution therefor, giving credit thereon for the said sum of $.366 47 cts. already paid; from which judgment the said Bennett appealed to the Supreme Court.

Badger for the appellant.

No counsel appeared for the other party in this Court.

Ruffin, Chief Justice.

If the party appealing to this Court do not bring up the record, the appellee may, by the act of 1818, 1 Rev. Stat. ch. 4, sec. 26, either file it or obtain a certificate of the Clerk of the appellant’s failure; and upon that certificate being filed with the Clerk of the Superior Court, he is to record it, “ and then issue execution on the judgment rendered in the Superior Court, as though no appeal had been prayed, taxing double costs against the appellant.”

This case turns on the meaning of that act — the question being, what costs the Legislature intended to be doubled?

His Honor thought them to be all the costs for which judgment had been rendered in the Superior Court, including those incurred in the County Court — excepting those incurred for witnesses. He ordered accordingly; and the party claiming the double costs appealed to this Court.

The act is not express as to what costs, or as to the costs of what Court or Courts the clerk is to tax double. The meaning is, therefore, to be collected as well as we can by construction. There are two considerations applicable to the question; by the one or the other of which, as it seems to us, the true interpretation must be determined. The one is, that the Legislature contemplated the costs for whieh judgment was rendered in the Superior Court; because they are ascertained by adjudication, and that judgment is to regulate the clerk of that court in issuing the execution. The other is, that the costs within the purview of the act, are- those incur*191red by the appellee, by reason of the appeal which the other party abandons. The judgment in the Superior Court upon this motion, proceeds upon neither of these principles. It rejects the latter altogether; and adopts the former in part, but does not follow it out. If the judgment in the Superior Court determines the costs in question, then the attendance of witnesses must be included, as well as the fees of attorneys and officers. For. those persons do not receive the money adjudged on their account; but the party to the suit recovers back what he has paid to them, and those sums are doubled and adjudged for his benefit. The act has no exception as to the witnesses; and there is no more reason for saying that the party may double the payments to the sheriff, clerk and attorney, than that he may do the same with the payments to his witnesses. The decision in the Superior Court cannot, therefore, be right; but must be either for too much or too little. It departs from its own principle. It remains, then, to consider which of those two principles is to govern the construction; and, in our opinion, it is the latter. We are led to this conclusion by looking to the mischief in the contemplation of the Legislature; the reasonableness of the remedy upon the one exposition or the other; and the provisions of the other acts in pari materia. ■

The mischief is that of taking frivolous and dilatory appeals, without the intention to prosecute them; whereby the appellee may be unnecessarily put to costs. It was fit the Legislature should attempt to prevent that, by such a penalty as would probably correct the evil. But, while we would expect it to be generally effectual, we should also expect it not to be ruinous, perhaps, to one side, and to confer an unmerited bounty on the other. On the contrary, we should anticipate that it would be reasonable in amount; and, especially, such as would operate with uniformity, or nearly so, not only on all persons incurring it, but also in amount to each person who should incur it. The enormity of the forfeiture is, of itself, a strong argument against doubling the costs adjudged in the Superior Court; which may include costs in the County Court, although the appeal from that Court was prosecuted in good faith. It is a penalty far beyond the de*192fault in many cases, and ought not to be adopted, if more moderation will satisfy the words of the act. Besides, there is another circumstance entitled to much weight on this questjoni rphe <qefaupt is the same in each appellant who fails to file the transcript, and who, therefore, ought to be visited. with the like mulct. But upon the construction claimed for the appellant in this case, the penalty will vary with every case; and that not slightly, but with extreme differences. It is not respectful to attribute such hard and partial purposes to the Legislature. On the contrary, there seems to be much reasoii for laying such a penalty as will induce a party not to appeal frivolously, and as will indemnify and fully indemnify the appellee out of the appellant, for all the inconveniences’ arising to him from such an appeal.- -This is sufficiently done by doubling all the costs to which the appellee has been put by the appeal; which', in this case, nie the costs incurred in the Supreme Court, by employing an attorney to represent him here, and by getting the clerk’s certificate, as required by the act. The costs of this court arejhose, therefore, within the purview of the adt, as we think. Upon that construction, the same forfeiture is incurred by every person committing the same default.

There' is another thing, leading to the same conclusion, not less cogent than those mentioned. In the Revised Statute, “ concerning appeals,” c. 4, sec. 6, it is provided, that upon appeals horn the County Court, the appellee may filé the transcript, w and, on motion in the Superior Court, the judgment ot the court below shall be affirmed with double costs, to be paid by the appellant.” What costs are meant in this ptirt of the act? Upon the appellant’s own hypothesis, they afe those ot the Superior Court, because the judgment for them is given in |he' Superior Court; No doubt those are the costs; but not for the reason given. That section of th e act is taken from the Court Law, 1777,- Rev. ch. 115, sec. 77; which, after directing the appellant to file the transcript fifteen days before the sitting of the Court; enacts that if he do not file it,- “ the judgment of- the County Court shall be affirmed. and the appellant shall pay double- costs in the Superior' Court? This explicit provision renders the whole *193policy of the Legislature, upon questions of this sort, clear; and requires us to receive similar expressions upon a subject, though somewhat more vague, in a sense consistent with that policy. The double costs are not those incurred in the Court from which the appeal was taken, but those in the Court to which it is taken. Neither the language of the law, nor the purposes of justice towards the appellee, require more.

To this it may be objected, that the execution will issue without a judgment to authorise it, and for costs of another Court, which the Clerk of the Superior Court cannot know, nor have the means of ascertaining. But those difficulties are easily answered or obviated. Whether the costs be those of the Superior or Supreme Court, it is obvious that, in either case, the clerk issues the execution without, in form, the warrant of a judgment. In that respe'ct, the case is, therefore, the same upon either construction. But the recorded certificate from this Court, by force of the statute, stands in the place of, and is a judgment for, this purpose, in point of efficacy. The act does not, therefore, require the execution for double costs to be issued from the Superior Cofirt, upon an idea that those cost's are there adjudged by the Court; but merely for convenience. Nor do we see much in the supposed difficulty in ascertaining the costs of the Supreme Court. A statement of them may be appended by the Clerk of this Court to the certificate he must give of the appellant’s default. They will Consist only of his own fee, and that of the appellee’s attorney, if he have one; and the act of 1798, 1 Rev. Stat. ch. 31, sec. 62, furnishes an easy method to either clerk, of establishing the relation between the party and his attorney. ’ Besides, costs in all cases are taxed by the clerk; and this, like every other taxation by him, is subject to re-taxation, upon the complaint of either party, as-in the case before ns. So there can be no danger of not ultimately arriving Correctly at the costs incurred by íhé appellee,- by reason of the appeal; the double of which, as we conceive, it was the purpose of the Legislature to give him.

Therefore the judgment of the Superior Court must be reversed, and a judgment entered on the rule in- that- Court in *194conformity to this opinion. As that judgment will be less ‘“favourable to'tlie appellant than that from which he appealed,, he, the appellant,, must pay the costs of this Court.

Per Curiam. Judgment reversed.