Swan v. Picquet

21 Mass. 465

• Court: Massachusetts Supreme Judicial Court
• Decided: March 26, 1827
• Status: Published

Opinion

March 26th.

Where an appeal from a decree of a judge of probate is not sustained, the appellee can recover only his ordinary legal costs; and the bond given by the appellant to prosecute the appeal to effect, and to pay cc all intervening costs and damages,” is intended only to enforce the judgment for such legal costs.

Swan appealed from a decree of the judge of probate, granting letters of administration to Picquet, and gave bond, pursuant to St. 1817, c. 190, § 7, for the prosecution of his appeal to effect at the next Supreme Court of Probate, and “ for paying all intervening costs and damages, and such costs as the said Supreme Court of Probate should tax against him.” The appeal was dismissed at the last March term, on the ground that Swan had no right to claim an appeal (see 3 Pick. 443), and the appellee moved for costs and damages, including as well damage from the delay, and all reasonable expenses occasioned by the appeal, as the ordinary legal costs; and Coolidge v. Inglee, 15 Mass. R. 66, was cited, to show that unless such damages were now adjudged to the appellee, he would have no remedy for them on the bond.

But the Court said that the legal costs only could' be allowed ; that it was difficult to ascertain what was particularly intended by “ intervening damages ” ; but that the object ol the bond was only to enforce such judgment as should be given for costs.