Opinion
(December Term, 1845.)
One who sues as administrator or executor is not liable for costs de bonis propriis if he fails in his suit.
(202) APPEAL from LINCOLN Fall Term, 1845; Bailey, J.
Alexander for plaintiffs.
No counsel for defendant.
The plaintiffs, as administrators, sued the defendant in debt, by way of warrant, before a justice of the peace. The suit went by successive appeals, taken by the defendant, to the Superior Court of Cleveland, where it was tried, and the plaintiffs were cast.
The defendant then issued an execution de bonis propriis against the goods and chattels, lands and tenements of the plaintiffs to recover his costs. The plaintiffs then moved the court to set aside the execution as having been improvidently issued. The court refused the motion, and the plaintiffs appealed.
Our act of Assembly declares that in all cases whatsoever the party in whose favor judgment shall be given shall be entitled to full costs. But it has been decided, as long ago as the year 1806, that when executors and administrators sue in auter droit, they are not liable de bonis propriis for costs when they are cast. Arrington v. Coleman, 5 N.C. 102.
The rule appears to be the same here as it is in England. There, by the Statute 23 Hen. VIII., ch. 15, it is enacted that "If the plaintiff be nonsuited, or a verdict pass by lawful trial against him, the defendant shall have judgment to recover his costs, and shall have such execution for the same as the plaintiff should have had in case the judgment had been for him." And in that country it had always been held that an executor or administrator was not within the operation of the statute: so that when they are plaintiffs they pay no costs, for they sue in auter droit, and are but trustees for the creditors, and are not presumed to be sufficiently conusant in the personal contracts of those they represent. And this is by an equitable construction of the statute, for there are no express words in it to exempt them. 2 Bac. Ab. (Cost), D. and E., and the cases there cited. So, in our act, there are no express (203) words to exempt executors and administrators, but it was early held that they could not have been intended by the Legislature to be included in it, because they do not sue for themselves. The Superior Court will order that the execution be set aside. The appellant must pay the costs of this Court.
PER CURIAM. Reversed.
Cited: Christian v. R. R., 136 N.C. 322.