The Supreme Court and Common Pleas, having the powers of the common law courts in England, and no other, in regard of costs claim no discretionary power but are directed by those statutes and our own Act of Assembly. And as the Act [2 Del. Laws] 1290, being made for the Commissioners, cannot extend to this Court, so the Statutes of Gloucester and Marlbridge did not extend to the same causes removed by writ of error. Costs were first given on writs of error, anna 1488. And by those statutes which govern the King’s Bench or Exchequer Chamber in cases of error, this Court are also governed and have no discretion in such cases, but must give or withhold as they are directed by law. This Court, upon an appeal from the Chancellor, by Art. VII, s. 2, of [the] Constitution [of] 1792, must pass such decree as he should have passed, and therefore the costs of that court are discretionary here. There is no statute or Act of Assembly making the costs of this Court discretionary, in the present case, unless Art. VI, s. 12, should have that effect, which perhaps extends no further than to give the party prevailing a remedy for them, which is inconsistent with an idea of discretion with regard to them. Nothing can be safely inferred from the Parliament’s giving costs upon an appeal from Chancery, for Parliamentum omnia potest, and could not be even bound by a law made by their predecessors.

*268What the practice of the Supreme Court was from the Orphans’ Court is not very certain, nor of much importance; but 1 Del.Laws 539, compared with [1 Del.Laws] 92, 126, 377, shows that costs were not discretionary in the Supreme Court, but appellant, failing, was bound by bond to pay them. With regard to the practice of the former Court of Appeals, no doubt that court had, by the Act of February 2, 1788 [2 Body Laws 840], powers sufficiently ample, as they were by that law, to exercise all the powers that the king and council before the Revolution could exercise upon an appeal to them, whose authority as it regarded this colony was perhaps not examinable. As this Court has no discretionary power as to their own costs, either by a continuation of the powers of the former Court of Appeals, or by Constitution, or by Acts of Assembly, costs here must remain as by the common law, that is, each to pay his own costs. The Act [1 Del.Laws] 1290, which this Court will see carried into execution cannot apply to this case, its operation being fixed to a month later than the decision in these caveats. And, at all events, the charge of attorney’s fees must be improper, as it does not appear that the Commissioners are constitutionally a court.

Curia advisare vult.

The Court have considered the question of costs in the case of Evans against Swain, and we are of opinion that the appellant is entitled to no costs of appeal, but must be allowed the costs below, and also of the trial in the Supreme Court, which was had by agreement, because of the written agreement.

Present: Booth, C. J., [of] Common Pleas, Clayton, Cooper, Rodney, and Bassett. Absent: Johns, C. J., whose opinion I also understood to be accordant.