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SECTION XV.

COSTS.

and admi

are liable

to costs

like other parties

when non

suited, or

when a verdict

passes against them; but the courts have a dis

cretion

in exempt

in

FORMERLY executors or administrators were not liable to Executors costs in case of a nonsuit, or a verdict against them, when nistrators they necessarily sued in their representative character, as upon a contract entered into by the deceased in his lifetime a; though when they might sue in their own name, as where the cause of action arose after the death of the testator or intestate, they were not exempt from costs b. But now by 3 & 4 W. IV. c. 42. s. 31, "in every action brought by an executor or administrator in right of the testator or intestate, such executor or administrator shall, unless the court in which such action is brought, or a judge of any of the superior courts of law at Westminster, shall otherwise order, be liable to pay costs to the defendant in case of being nonsuited, or a verdict passing against the plaintiff; and in all other cases in which he would be liable, if such plaintiff were suing in his own right, upon a cause of action accruing to himself; and the defendant shall have judgment for such costs,.and they shall be recovered in like manner. This enactment was held to have a retrospective operation . "The general rule now is, that an executor or administrator who has been nonsuited, or who has lost a verdict, is liable to costs; and it is cast upon him to make out that there are particular circumstances in his case which would justify the court in exempting him, by an exercise of their discretionary authority." e

To exempt executor from costs, when there is a verdict

* Their exemption was founded not on any express enactment, but on the description of words contained in the statute 23 Hen. VIII. c. 15. Per Lord Eldon, C. J., in Tattersall v. Grote, 2 B. & P. 253. Per Tindal, C. J., 1 Bing. N. C. 302. See Tidd's Prac. 9th Ed. 978.

Grimstead v. Shirley, 2 Taunt. 116. Jones v. Jones, 1 Bing. 249. Dowbiggin v. Harrison, 9 B. & C.

666. Jobson v. Forster, 1 B. & Ad.
6. Slater v. Lawson, id. 893.

C3 & 4 W. IV. c. 42.

4 Freeman v. Moyes, 1 Ad. & Ell. 338. 3 N. & M. 883. Grant v. Kemp, 2 C. & M. 636.

e Per Tindal, C. J., in Wilkinson v. Edwards, 1 Bing. N. C. 303. 1 Scott, 173. Per Lord Denman, C. J., in Farley v. Bryant, 1 H. & W. 775. 3 Ad. & Ell. 852. 5 N. & M. 57.

ing them from costs where formerly they

in cases

were not

liable to

them.

against him, it is not sufficient for him to shew that the action was brought bona fide, and with a fair chance of succeeding; but some misconduct on the part of the defendant, or some other special cause for exemption must be shewn2; and the conduct of the defendant after action brought, relative to the mode of conducting the defence, will not be considered by the court in exercising their discretion. Nor is it sufficient to shew that the action was brought under legal advice to try a doubtful point of law, which it was necessary to have decided, in order to obtain an equitable administration of the assets in a creditor's suit. But where an executor was nonsuited in an action on a policy of insurance effected on the life of the testator, the court ordered judgment to be entered up for the defendant, without costs, it appearing that it was the bounden duty of the executor to bring the action; besides, he was defeated on a ground which he could not be supposed to apprehend. The courts have no authority under the above statute to exempt an executor from costs, which, before the act, he would be liable to pay; the express object of that statute being to impose additional liability on executors and administrators. Where an executor seeks to be relieved from costs, he should make his application before taxation, otherwise, if granted, it will be only on payment of the costs of the application. It is not settled, whether the decision of a single judge respecting such costs is final, or whether it is subject to the review of the court 8.

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SECTION XVI.

JUDGMENT.

WHENEVER the action against an executor or administrator When the judgment can only be supported against him in that character, and he will be de pleads any plea which admits that he has acted as such, except

bonis tes

tatoris et si non de bonis

a release to himself, the judgment against him must be, that the plaintiff do recover the debt and costs to be levied out of propriis. the assets of the testator, if the defendant have so much, but if not, then the costs out of the defendant's own goods, otherwise the judgment will be erroneous. As where the defendant pleads non est factum testatoris, or a release to the testator, or non assumpsit. So where he pleads plene administravit, and it is found against him. But where the defendant pleads ne unques executor, or a release to himself, and it is found against him, the judgment is, that the plaintiff do recover both the debt and costs in the first place, de bonis testatoris si, &c., and si non, &c., de bonis propriis, because the executor cannot but know these to be false please. Upon a plea of plene administravit the executor or administrator is liable only to the amount of assets proved to be in his hands, and judgment should be entered up for that amount onlyd. If the plaintiff Judgment cannot deny the plea of plene administravit, he should pray quando acjudgment of assets quando acciderint, or assets in futuro, ciderint. either generally or specially, as, "which after satisfying monies due on the outstanding judgments, bonds, &c., mentioned in the defendant's plea, shall come into the defendant's hands as executor," &c. In assumpsit against an executor, he pleaded a retainer and plene administravit præter, and the plaintiff, admitting the truth of the pleas, took judgment of assets quando

of assets

1 Saund. 335.

b Id. As to the effect of a mistake in entering judgment de bonis propriis instead of de bonis testatoris, &c., see id. Short v. Coffin, 5 Burr. 2730. Burroughs v. Stevens, 5 Taunt. 554.

1 Saund. 336. b.

d 1 Saund. 219. b. 336. Hargthorpe v. Milforth, Cro. Eliz. 319. Harrison v. Beccles, cited, 3 T. R. 683.

e Com. Dig. Pleader (2 D. 9.) 2 Saund. 226. Mary Shipley's case, 8 Co. 134. 1 Ch. Pl. 589.

acciderint; held, that he was entitled to enter it up for the debt and costs a.

If the plea be plene administravit præter, a sum which the defendant acknowledges to be in his hands, the plaintiff (if he cannot controvert it) should take judgment pro tanto, and of assets quando acciderint, as to the residue. If the defendant has pleaded the general issue, or any other plea denying the debt or cause of action, with the plea of plene administravit, the plaintiff must proceed to trial to establish his debt, and on the prayer of judgment of assets quando, &c., upon the plea of plene administravit, there is a stay of judgment until the determination of the issue. But where the debt has not been denied, and the defendant kas merely pleaded plene administravit, and the plaintiff prays judgment quando, &c., there should be an entry of that judgment immediately. This is an interlocutory or final judgment, according to the nature of the action; and if it be only interlocutory, there must be a writ of enquiry to ascertain the amount of the plaintiff's demand. By taking a judgment of assets quando, the plaintiff admits that the defendant has fully administered to that time a. If the plaintiff takes issue on the plea of plene administravit, and it be found against him, he cannot have judgment of assets quando e.

SECTION XVII.

ADMINISTRATION BOND.

THE statute 21 Hen. VIII. c. 5. s. 3. directs the ordinary to grant administration, "taking surety of him or them, to whom shall be made such commission ;" and the statute 22 & 23 Car. II. c. 10. s. 1. further provides " that all ordinaries, ecclesiastical judges, &c., shall, upon granting administration, take sufficient bonds, with two or more sureties, of the persons appointed administrators, in the name of the ordinary, with con

a

Cox v. Peacock, 1 Hodges, 272. 2 Scott, 125. De Tastett v. An

drade, 1 Ch. 629.

b1 Ch. Pl. 589.

e Tidd, 683.

If the action be in

debt, the judgment is final in the first instance.

d 2 Saund. 219. a.

e 2 Saund. 217.

dition that such administrators shall make a true inventory of the goods and chattels of the deceased; and shall well and truly administer such goods and chattels according to law, and cause a true and just account of the said administration, &c., to be made, and shall deliver and pay unto such person or persons respectively, as the judge of the court in which administration was granted, by his decree or sentence shall appoint, all the rest and residue of such goods and chattels as shall be found remaining on the said administrator's account, the same being first examined and allowed by the said judge," &c.

the bond.

If the bond given to the ordinary under this statute has been Action on forfeited, the parties desirous of enforcing it against the sureties, must apply to the ecclesiastical court to pronounce it forfeited, in order to its being put in suit. It seems that the next of kin or a creditor may sue on such bond in the name of the ordinary, and the court of King's Bench will direct the ordinary to permit his name to be used, in an action thereon, on the application of a party properly entitled ". It may be assigned as a breach in an action on the bond, that the administrator has not delivered a true and perfect inventory, or that he has not made a true and just account; and either of these breaches will be incurred without any citation 4. But it is no breach of the conditions of such bond " to refuse to distribute among the next of kin, the surplus of the intestate's estate, after payment of debts," &c., without the previous decree of the court directing the administrator to do so. Nor is it a ground of forfeiture that the administrator has not paid the debts of the intestate. Where an administrator converted assets of the intestate to his own use, and became a bankrupt before he had exhibited his inventory, or made his account, and the ecclesiastical court discharged him from the suit there, he having received his certificate as a bankrupt; the court of Exchequer held, that his

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