
    John Jamison, Administrator of Hugh Wallace, v. John Lindsay.
    Columbia,
    May, 1828
    An administrator sueing ifi Iiis representative character, is not liable for costs, if the alleged cause of action arose antecedently to the death of his intestate: It makes no diffrence, that, from the nature of the contract 'sued upon, as where it was a note payable to the intestate, “ or bearer,” the administrator might have sued in his own right, if the cause of action appertained to the intestate, and arose before his death. Nor, as it seems, does it vary the rule, that the declaration contains counts upon promises to the administrator.
    Tried before Mr. Justice Johnson, at Newberry, Fall Term, 1827.
    This was an action of assumpsit, in which the plaintiff declared upon a promissory note, which was made payable to his intestate, “ or hearer.” The defendant pleaded non assumpsit infra, and the plaintiff replied a promise to himself within four years. To this replication the defendant demurred; and the Court of Appeals sustained the demurrer, holding the replication to be a departure, but gave the plaintiff leave to amend. See the case reported, 4 McC. 93. The plaintiff, accordingly, added eounts on promises to himself, but at the trial, the defendant proved payment to the intestate, and obtained a verdict. The clerk, however, refused to tax costs against the plaintiff, and upon a rule against him to shew cause, Mr. Justice Johnson who presided, ordered that costs should he taxed on so much of the pleadings dud proceedings, as related to the counts on protoi- ^ , ® ses to the administrator.
    From this order the defendant appealed, and moved to make the rule for taxing all the costs, absolute, on the following grounds.
    1st. That the defendant was intitled to costs against the plaintiff, for the whole of the proceedings, either da bonis propriis, or of the g^hs of the intestate in his hands to be administered.
    2d. Tnat the plaintiff was liable for all the costs da bonis pro-priis, because he might and ought to have sued in his own right, the note being payable to bearer, and the subsequent promise having been made to himself.
    sTenTlTaun 322. Wiltoii Boland Pub 445.
    „ , „ , ,, Viae2Avchb: Pr: 130.1.
    Nance, for the motion.
    O’Neall, contra.
    
   Nott, J.

delivered the opinion of the Court.

The rule seems to be, that an executor or administrator shall not he liable for costs, where he is bound to sue in his representative character. This was an action on a note given to the intestate in his lifetime, and, therefore, must have been sued by the administrator in that character only; and although he could not ^ave maintained the action without resorting to the subsequent promise to himself, yet that furnished no new, distinct cause of action, but merely kept alive a former right by repelling the legal presumption of payment. I am aware that a difference of opinion has existed on this point, but I must still adhere to my own, until I can find some higher authority for changing it than I have yet found.

As to its being payable to hearer, that does not change the nature of the case. For unless the plaintiff had a personal interest, he ought to have sued as administrator: I will not say that he might not have sued as bearer; but he was under no obligation thus to change Ins legal character, in order to charge himself with costs. If the Judge had not allowed any costs, I should have been disposed to support the decision. I think, therefore, the defendant has no cause of complaint, and the motion must be refused. See Hullock on Costs, 173-5 ; and see also Luyten, administrator, v. Frink, 2 Bay, 166.

Motion refused.  