
    Amos Hardy versus Samuel Call.
    [HANCOCK,
    JUNE TERM, 1819.]
    Where an administrator commences an action, and fails to support it, judginen for costs is to be rendered against him de bonis propriis.
    
    Scire facias on a judgment recovered in the Circuit Court ot Common Pleas, for costs against Call, in his capacity of administrator of the goods and estate of George Palmer, deceased. In that capacity Call brought his action against Hardy, which was referred by rule of court in the Common Pleas to one referee ; and he reported that Hardy should recover against Call, “ in his said capacity of administrator,” costs of court and of reference; and judgment was entered up in the same language. Execution issued against the goods and estate of Palmer, the intestate, in the hands of Call, which was returned with the officer’s certificate of nulla bona thereon ; upon which there was a suggestion of waste, by Hardy, in the Common Pleas, and the present writ of scire facias was granted on that suggestion. The judgment was recited in the writ, as “ against the goods and estate of the intestate in the hands of Call.” Plea nul tiel record.
    
    
      Gilman, for the defendant,
    contended that the judgment did not support the writ, and that the variance from it in the recital was material. He further insisted, that a writ of scire facias was not authorized, in the present case, by the statute of 1783, c. 32, § 9, upon which it is founded. That statute provides for such writ only upon a suggestion of waste, founded on a return of nulla bona on “ executions for the debts or legacies of the testator or intestate.” The *writ is therefore unsupported, as well [ * 531 ] by statute as by the judgment, which it professes to recite.
    
      Williamson, for the plaintiff,
    argued, that the judgment and the recital in the writ were essentially the same, the variance being merely verbal and immaterial; that a judgment against an administrator, ii2 that capacity, is virtually against the goods and estate of ..is intestate. If, ..-.cwever, the variance were material, and the judgment incorrectly entered, this being the act of the clerk, the Court would, ex officio, order it corrected. As to the objection founded upon the statute, he contended that, upon the liberal construction which a remedial statute, as this was, ought to receive, it would extend as well to the security of judgment creditors for costs, recovered in a groundless suit brought by the administrator, as to the security of those who were entitled to debts or legacies, there being the same reasons for the remedy in the one case as in the other.
    
      
       This case was accidentally omitted to be reported among those of the Eastern Circuit, 1810, at the beginning of this volume.
    
   Wilde, J.

The writ in this case is scire facias, to recover execution against the defendant de bonis propriis, he being administrator of the goods and estate of one Palmer, and having sued the former action in that capacity ; and it is founded upon the suggestion of waste, appearing by the return of the sheriff. It appears that Call was plaintiff in the original action, and, having failed to make good his claim, judgment was rendered against him in the same capacity, in favor of Hardy, the present plaintiff; and the question now to be decided depends on the form and effect of that judgment.

In the writ of scire facias it is alleged, that judgment was rendered against the goods and estate of Palmer. The defendant has pleaded, that there is no record of any such judgment. The judgment having been exhibited to us for inspection, we find, as already mentioned, that it was rendered against the defendant in his capacity of administrator.

[ * 53á ] *It has been argued, that this is equivalent to a judgment against the goods and estate of the intestate, and that such is the legal effect of the judgment in question.

But we think otherwise. Such, certainly, is not the obvious meaning of the record; and no averment contrary to the obvious meaning of a record is admissible. When a record is so drawn that the words may admit of a double construction, the Court will interpret the words that way which will make the record good, as being most for the advancement of justice. [Cro. Eliz. 161. —Cro. Jac. 119, 153, 244.] According to this rule, if the words of the record be doubtful, we are to understand them in the sense which will best comport with a legal judgment.

This leads us to consider what ought to have been the form of judgment in the original action; and we are clearly of opinion, that it ought to have been entered against the present defendant de bonis propriis. He was the party prosecuting, and is personally responsible to the adverse party, by the statute respecting costs; and such form of judgment best comports also with the rights and liabilities of executors and administrators, and all concerned in the settlement of the estates of deceased persons. For, if judgment foi costs could be legally recovered against the goods and estates of testators and intestates, all such goods and estates might go for the payment of costs in frivolous and groundless suits. J idgment, therefore, in every case, commenced by an executor or administrator, in which the defendant becomes entitled to costs, ought to be entered against such executor or administrator personally. After payment, he may charge the amount in his account of administration, to be allowed or not, as it may appear to the judge of probate that the suit was discreet, or otherwise. And thus justice may be done to all parties interested; and the discretion of execdtors and administrators may be subjected to a wholesome restraint.

The judgment of the Court, therefore, is, that there is no such record, as is alleged in the writ of scire facias. The * plaintiff’s remedy is by action of debt on the judgment [ * 533 ] against the administrator. Such is the judgment in the original suit commenced by the present defendant, as appears by the record; the words of which do not appear to admit of the construction contended for by the plaintiff’s counsel. The words descriptive of the capacity in which the plaintiff in the original suit prosecuted, have no legal effect upon the judgment, and may be considered as surplusage. But whether so considered or not, it is very clear that no judgment has been rendered against the goods and estate of Palmer, the intestate, as the plaintiff has set forth in his writ.  