
    Peter C. Brooks et al. Administrators &c., in Error, versus Nathaniel Stevens.
    Where an administrator comes into court to prosecute a suit commenced by the intestate, and fails to support it, judgment for costs must be rendered against tne estate of the intestate.
    John Phillips commenced an action of covenant against Stevens and died pending the suit; whereupon the plaintiffs in error, being appointed administrators of the goods and estate of Phillips, were admitted to prosecute the suit; and afterwards judgment was rendered against' them de bonis propriis for the whole amount of the costs, which accrued as well before as after the decease of Phillips. And the administrators now brought a writ of error to reverse that judgment.
    
      J. Pickering, for the plaintiffs
    in error, read from St. 1783, c. 32, § 10, which enacts, that in case of the death of any party to a suit before final judgment, his executor, or administrator, may prosecute or defend the suit, and that “if by the verdict of a jury, or by the default or neglect of the executor or administrator, in prosecuting or defending such suit, after the executor or administrator shall have appeared and undertaken in his capacity to prosecute or defend the suit, judgment pass against the executor or administrator, the Supreme Judicial Court &c. are hereby respectively authorized, empowered and directed, to enter up judgment for or against the estate of the deceased, in their hands and under their administration, as the case may require.” The general rule of our law is, that an administrator is not charge able de bonis propriis; but our statutes make him liable in particular cases, upon a scire facias suggesting waste. St. 1783, c. 32, § 9 ; St. 1794, c. 5. In Hardy v. Call, 16 Mass. R. 530, there was a scire facias suggesting waste, and the costs demanded had arisen in an action commenced by the administrators.
    
      Saltonstall and Cummins, for the defendant.
    The reasoning in Hardy v. Call applies as well to a suit commenced by an intestate and prosecuted by his administrator, as to a suit commenced by the administrator The administrator has an opportunity of examining into the justice of the intestate’s claim ; he comes in voluntarily and takes the suit with all its incumbrances ; and by our statute the prevailing party is entitled to costs. There must be either two judgments for costs, or a judgment in part de bonis intestati and in part de bonis propriis, or a judgment wholly de bonis propriis. All these judgments except the last are unprecedented.
   Parker C. J.,

in delivering the opinion of the Court, observed that in the case of Hardy v. Call it was decided, that where an administrator commences an action and fails to support it, judgment for costs is to be rendered against him de bonis propriis; and the reasons for the decision are strong, that a defendant shall not run the hazard of recovering costs against an insolvent estate, and that if the administrator acted properly in bringing the suit, the judge of probate may allow the • costs in an administration account. We have no disposition to disturb that case. The case now before us differs from it in several essential points. An administrator may be compelled to come into court, when his intestate dies before final judgment, and it would be a hard ship to make him pay the costs of a suit which had been a long time pending ; and when he came in, perhaps, in order to give the other party a judgment. If the case of Hardy v. Call stood alone, the present case would not come within it; but it appears that the present case is expressly provided for by the statute. The Court have no authority to enter up judgment de bonis propriis; they are “ authorized, empowered and directed, to enter up judgment for or against the estate of the deceased.”

Judgment reversed and a judgment for costs entered up against the estate of the intestate. 
      
       S. P. Healy v. Root, 11 Pick. 389. See Howe’s Practice, 300.
     