
    Henry Carter, Administrator, vs. Charner Estes.
    
      Costs — Executors and Administrators — Trover.
    Where an executor or administrator may sue without mentioning his representative character he is liable for costs.
    For a conversion after the death of the intestate, the administrator may sue in trover without naming himself administrator, and he is therefore liable for costs even though he names himself administrator.
    BEFORE O’NEALL, J., AT CHESTER, SPRING TERM, 1858.
    Trover for tbe conversion of negroes. Tbe .declaration after reciting that tbe defendant was attached to answer to tbe plaintiff, administrator of all and singular, tbe goods and chattels, rights and credits, which were of William Estes, deceased, alleged, that William Estes, in his lifetime, to wit, on, &c., was possessed as of his own property of certain negroes, &c., which on the same- day he lost, &c., that after-wards, to wit on, &c., he died, &c., after whose death, to wit, on, &c., the negroes came to the possession of the defendant by finding, who knowing the said negroes to.belong,to the plaintiff, to whom administration, &c., had been granted, nevertheless converted them to his own use, &c.
    The plaintiff having failed in his action his Honor decided that he was liable for costs.
    The plaintiff appealed.
    
      Melton, for appellant.
    An administrator is not liable for costs where he necessarily sues in his representative character. 2 Bac. Abr. 518; 2 Arch. Pr. 146 ; Hull, on Costs, 175; Tattersall vs. Groote, 2 B. & P. 254; Tidd. 978; Frinlc vs. 
      Luyton, 2 Bay, 166; Jamison vs. Lindsay, 1 Bail. 79. Where an administrator Las only constructive possession he must declare as administrator. Gochril vs. Kinaston, 4 T. B. 277; 2 Sannd. PL & Ev. 870. But plaintiff here did not have even the constructive possession, for that can be only where the intestate was possessed at the time of his death. The case is analogous to cases arising ex contractu, where the breach occurred after the intestate’s death; Wilton vs. Hamilton, 1 B. & P. 445; Gooke vs. Lucas, 2 East, 395 ; Tattersall vs. Groote, 2 B. & P. 254; 3 B. & A. 687. The rule, that if an administrator declare on a conversion in his own time, he is subject to costs, rests upon cases of non-suit, with counts, one or more alleging possession in administrator, Farley vs. Farley, 2 Bail. 319 ; Hollis vs. Smith, 10 East, 293 ; Grim-stead vs. Shirley, 2 Taunt. 116 ; cases where the administrator alleged possession in himself, Bollard vs. Spencer, 7 T. it. 354; and cases where the intestate died in possession, thus giving the administrator constructive possession, 1 Yen. 109. The proper rule to be deduced from these cases is, that if an administrator allege a conversion in his own time, predicated on a possession, actual or constructive in himself, he is liable for costs. If plaintiff is not clearly within the Act he is entitled to his common law exemption. 23 H. 8, c. 15, 2 Stat. 462 ; 6 Mod. 94; 1 Salk. 208. He further cited Ketchum vs. Ketchum, 4 Cow. 88; Goldthwayt vs. Petrie, 5 T. B. 235 ; Kirby vs. Quin, Bice, 224.
    
      McAlily and McLure, contra.
   The opinion of the Court was delivered by

G-loyek, J.

The action was trover, brought by the plaintiff as administrator of William Estes, to recover damages for the conversion of certain slaves, alleged to have been in possession of the intestate, in his lifetime, and to have been converted after bis death. The verdict was for the defendant, and O’Neall, J., on circuit having decided that the plaintiff was liable for costs de bonis propriis, a motion is made in this Court to reverse the decision on the ground, “ that the plaintiff sued in “his representative character on a cause of action which arose in the lifetime of his intestate, and he is therefore not liable for defendant’s costs.”

The rule seems to have been long and well settled, that where an executor or administrator brings an action in which he need not name himself in his representative character, and fail, he shall pay costs, (Jenkins vs. Plombe, 6 Mod. 91,) and his naming himself executor or administrator shall not exempt him from it. The same rule has been adopted in South Carolina and has been followed since 1798. (Frink & Co. ads. Luyton, 2 Bay. 166; Jamison vs. Lindsay, 1 Bail. 79) Our next inquiry is, was the plaintiff bound to sue in his representative character. In Kerby vs. Quinn, (Rice. 264,) it was held, that an administrator who has never had possession of the goods of his intestate, may maintain trover in his own name for a conversion after the death of the testator, his letters of administration being the evidence of his title; and in Farley vs. Farley, (2 Bail. 319,) the plaintiff having declared in trover for a conversion in the lifetime of his intestate, and in a second count, for a conversion after his death, after a verdict-for the defendant it was decided that the plaintiff was liable for the costs on the second count de bonis propriis. Where executors or administrators in good faith and with such information as they may reasonably rely upon to establish their rights, commence suits in their representative characters, or in their own names to establish those rights, another rule ’ apparently more just and equitable, may be suggested. We are not prepared however, for the reasons urged, to reverse the judgment of the circuit judge, which conforms to a rule so long settled and acted upon ; — and in reply to the argument in support of an alteration of the law in this respect, the language of Lord Kenyon is appropriate. “ The rule in favor of executors and administrators is sufficiently extensive. We all of us remember, actions improperly'brought by them and which,'perhaps, would not have been brought had it not been for the privilege .they havehf being exempt'from paying costs.” Without some salutary restraint the assets of an'estate may be considerably wasted by the legal representative in fruitless litigation.

Motion dismissed.

O’Nball, Wardlaw, Whitner and Munro, JJ., concurred.

Motion dismissed.  