
    
      Jane W. Buckels vs. James J. Carter, Ex'or W. H. Carter.
    
    An administrator plaintiff, suing on the contract of his intestate, is not ordinarily liable for costs upon a non-suit; but a judgment for the costs is not void but irregular only. Until such a judgment is set aside, a Ji.fa. issued thereon will protect the sheriff.
    Por costs collected on such & ji.fa., the sheriff will not be liable to the administrator, if he pays them away before notice of the objection.
    Por the sheriff5 s own costs, collected and retained by him on such a fi.fa., he will be liable to the administrator in’ an action of assumpsit; but the sheriff may defend the action, by shewing that the costs, which he retained, are the plaintiff’s own costs, incurred by him in the prosecution of the suit, and for which he is liable to the sheriff.
    An executor, or administrator, plaintiff, is liable for his own coste incurred in prosecuting the action.
    
      Before Frost, J., at Williamsburgh, Fall Term, 1852.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of indebitatus assumpsit, brought against the defendant, the executor of William H. Carter, a former sheriff, to recover $98, the amount of the costs, alleged to have been illegally exacted by the deceased, as sheriff, under duress of a writ of fieri facias. The bill of particulars set out the amount of the taxed costs, which the plaintiff had paid to the deceased, “ under a void judgment and execution.”
    “ The plaintiff produced in evidence the record of a case, in covenant, in which Jane W. Buckels, administratrix of Emanuel Buckels, was plaintiff, and James L. Mouzon and others, executors of Samuel R. Mouzon, were defendants. The action was brought to recover, under a warranty of titles, the value of a part of a tract of land which had been sold and conveyed by Samuel R. Mouzon to Emanuel Buckels; which part had been recovered from Emanuel Buckels or his heirs. In the action of covenant, Jane W. Buckels, administratrix, was non-suited. The defendants, on this non-suit, entered up judgment, (10th May, 1847,) for the costs of the suit to the amount of $98, and sued out aji.fa., which was lodged in the office of William H. Carter, then sheriff. The receipt of Carter for the bill of costs was produced. It set out the title of the case and the items of sheriff’s, attorney’s, clerk’s and witness’s costs. The receipt was dated the 2nd August, 1847. A demand was proved to have been made of Carter, for re-payment, at the succeeding Fall Court, in November, 1847. Carter replied, if the rest would repay, he would. He did not say, that he had paid the costs, collected by him, to the other parties. The plaintiff cannot write ; is an illiterate person ; borrowed the money to pay the bill of costs. The plaintiff here closed.
    “ A motion was made for a non-suit, on the ground, that the money having been demanded by the sheriff, and paid to him under a judgment and execution, still in force and not vacated, indebitatus assumpsit could not be maintained to recover it back, especially when it appeared that .the sheriff had paid away the costs received, to the other parties, for whom they bad been collected. I held that the judgment was not void, the Court having jurisdiction of the subject and of the parties to the suit: and so the sheriff would be protected in enforcing the execution. But that the .judgment was irregular and voidable only; and that, until it was set aside, the sheriff was bound to enforce the execution; and was not liable to an action for any thing he might do in obedience to its mandate. This rule of law, I held, would protect the sheriff against the plaintiff’s demand for all the other costs received, except what he received on his own account. Regarding the sheriff as a party to the execution, for the amount of his own costs, which were in the judgment and execution, it was held, that the plaintiff might maintain the action against the defendant, on that item of the bill of costs. But while it was admitted, that Jane W. Buekels, administratrix, plaintiff in the covenant suit, was not liable to pay the costs of the defendants, on the non-suit: yet it was held that she was liable to pay to Carter, the sheriff, the costs of the services which ■ he had rendered for her, as plaintiff; and that the defendant might resist the plaintiff’s demand, in this action, to the amount of such costs j though the defendant would not be allowed to abate the plaintiff’s demand by proof of costs due for services, rendered for the defendants, in the covenant suit. It was further held that, in any view of the sheriff’s liability to the plaintiff, on account of the payment made by the plaintiff to the sheriff, under the execution in the covenant suit, in this action, the defendant might defeat the plaintiff’s demand, by showing that the sheriff had actually paid to the several parties entitled to them, the costs which had been received by him, under the execution, on their account.
    
      “ The defendant proceeded to show the amount due to the sheriff for costs of services rendered by him for the plaintiff, in the covenant suit, when it was objected, on behalf of the plaintiff, that such defence should have been made by a notice of discount. The objection was overruled. The defendant then proved, by the production of the original subpoena writs, that the plaintiff was debtor to the sheriff in the covenant suit, for costs of serving subpoenas, $40 80; and in like manner, that plaintiff was debtor to the clerk for $11; and to Mouzon, the sheriff preceding Carter, $3; and for witnesses’attendance, $22; all of which, as well as $25, the costs of the defendant’s attorneys, had been paid in August, soon after the receipt of the money from the plaintiff, and some months before a demand for repayment was made of Carter. Mr. Porter, the defendant’s attorney in the covenant suit, proved that only two subpoena writs were issued on behalf of the defendants, in that suit, and these were not served by the sheriff. The evidence here closed.
    “ In reply to his enquiry, the plaintiff’s attorney was told that the jury should be instructed that the execution in the covenant suit was not void; but irregular and voidable only. On this ground, I had strongly inclined to think that the motion for a non-suit should be granted; but the defence having been disclosed, and it seeming to tend in favor of the defendant, the case was allowed to proceed. The plaintiff took a non-suit and gave notice of her intention to appeal.”
    The plaintiff appealed and now moved that the non-suit be set aside on the following grounds :
    1. That the judgment and execution for costs of non-suit against Jane W. Buckels, administratrix of Emanuel Buckels, which were entered by the Clerk of the Court, on the non-suit of the case of covenant, entitled Jane W. Buckels, administratrix of E. Buckels vs. James L. Mouzon, et al., were'void, and not merely irregular and voidable, and the money collected by Carter the sheriff, under authority of said execution, although paid away by him before demand, was recoverable from his representative in the plaintiff’s action of assumpsit. The Clerk had no jurisdiction as to the said costs.
    2. That the presiding Judge, it is respectfully submitted, erred in allowing the defendant to offer in evidence, proof of services rendered by his testator, to the plaintiff without notice of discount.
    3. That the defendant’s testator had no right to enter up judgment and issue execution against. the plaintiff, on an order of non-suit in the covenant case, for services rendered by said testator to the plaintiff in that case.
    4. That it was proved by the record that Carter, the sheriff,
    
      had actual notice of the character of the whole proceeding in the covenant case, as all the papers served in that case, from the commencement of the action to the execution for costs, were lodged with him, and served" during the term of his office as sheriff.
    5. That supposing the plaintiff’s demand had been properly reduced by discount of services rendered her by the said sheriff, she had a right to recover the amount paid by her, on the said execution, for the costs of witnesses, of the clerk, and of the defendant’s attorneys.
    
      Miller, for the motion,
    cited 1 N. & McC. 330 ; Harp. 330.
    
      Harllee, contra.
   The opinion of the Court was delivered by

Wardlaw, J. An administrator plaintiff, 'suing on the contract of his' intestate, is not ordinarily liable for costs upon a non-suit: but he is liable where the cause of action arose after the death of the intestate, and he might have sued thereon in his own right, although he has sued as administrator; — or where he has been guilty of laches in conducting his suit; — or has abused the process of the Court, (3 Bos. & Pul. 115;) — or where, in trover, if not in an action ex contractu, he has joined to a count in the intestate’s right one in his own right as administrator, (Farley vs. Farley, 2 Bail. 319; Jamison vs. Lindsay, 1 Bail. 79.) Where he is not liable for costs, a judgment of non-suit entered against him should discharge the defendant without day, but ought not to award costs. A judgment for costs entered in such a case is irregular, and may be set aside on motion : and where it has been set aside, money, which under it has come to the hands of the sheriff or defendant, may by summary proceedings be restored to the administrator. The execution will be no protection to the defendant or his attorney— for they must be presumed to have known its insufficiency : but to the sheriff it will be a justification, because he was not privy to the irregularity. It has been supposed that in this case the sheriff ought to be considered as privy, because he had served subpoena writs for the administratrix. That however could at most only have informed the sheriff that the suit, in which the subpoena writs were served, had been brought by the plaintiff in a representative character; not that it was of such kind that, in opposition to a mandate authenticated by the seal of the Court, a ministerial officer must have known, that none of the circumstances existed which might regularly have subjected the administratrix to costs.

For the money which the sheriff paid away before notice of objection to the execution, this action cannot then lie. For the money yet in the hands of the sheriff’s executor, the sheriff’s fees, the action would lie, as a more summary proceeding would have done against the sheriff himself, — if the execution was set aside, and that money was such as the plaintiff was not bound to pay. But the exemption of an administrator plaintiff from liability to the costs of the defendant, is not an exemption from the obligation of his own contracts, or a privilege to procure gratuitous service. He must pay his own costs, not those of the defendant. The whole amount retained by sheriff Carter was actually due to him by Mrs. Buckels, plaintiff in the action of covenant. For it, he might have had an execution against her issued, after taxation and demand, in conformity with the Acts of 1791. (7 Stat. 264, Sec. 11; 6 Stat. 161, Sec. 4, 5.) It was not a case in which he had already execution against the other party, and therefore does not fall within the class, wherein, according to Corrie vs. Jacobs, (Harp. 330) the officer of Court has execution against one party and action against the other, hut not execution against both. That which the sheriff was justly entitled to recover from the plaintiff, and no more, having remained in his hands, his representative may without discount oppose the recovery back in an action of indebitatus assumpsit. The same evidence, which now defeats the plaintiff, would protect her against any subsequent demand for these sheriff’s fees, if any should be made, as has been suggested in argument.

The motion is dismissed.

O’Neall, Frost, Withers and Whitner, JJ., concurred.

Motion dismissed.  