
    Turnham’s Executrix vs. Shouse.
    Covenant.
    [Mr. McHenry and Mr. Sprigg for plaintiff: no appearance for defendant.]
    From the Circuit Court eor Shelby County.
    
      April 6.
    The common law gave no costs to a successful defendant. They are still recovered only by a stat. of H. 8, which does not apply to any case where the plaintiff sues in autre droit: so where an ex’or sues upon a contract made with, or for a wrong done to, his testator, there can be nojudg’t against him for costs, either de bonis propriis, or de bonis testatoris. But—
    Where aplaintiff sues as executor, when the action should or might have been bro’t in his own right, andis unsuccessful, judg’twill be given againsthim for the defendant’s costs, to be levied of the assets, if any, if none, of his_own estate.
    It has been adjudged in England, that, where a plaintiff abuses a fiducial privilege by wantonly prosecuting a groundless suit, or has vexed a defendant by culpable default, he may be compelled, in the discretion of the Court, to reimburse the dof’t for his costs —not as ordinary costs, hut as a whether this practice would be adopted here: if it should be, a rule to the party from are°mdemandedt that he may have an opportunity to appear and ex-onerate himself; and the order for taxing the costs should show that he was heard, or was cited & made default and also, the costs of the proceeding. A general judg't for costs, asn an ordinary case, mraidbe erroneous.
   Chief Justice Robertson

delivered the Opinion of the Court.

Eliza Turnham, as Executor of her deceased husband, (John Turnham,,) sued Daniel Shouse for an alleged breach of his covenant with the testator, whereby he covenanted that a slave, whom he sold and transferred to him by the same writing, was then sound.

On an issue or a plea traversing the allegation that the slave was unsound at the date of the covenant, the jury found a verdict for the defendant in the action; and thereupon, the Circuit Court rendered judgment in bar of the action, and also a judgment against the plaintiff for costs de bonis tesialoris.

To reverse the judgment for costs, this writ of error is prosecuted.

The common law did not entitle a successful defendant to costs in any common law action. And therefore, all the right which a defendant can claim to a judgment for costs in any such action, must be derived from statutory enactment. A statute of 23rd H. 8. c. 15. s. 1. provided, in substance, that the defendant shall be entitled to costs, “if the plaintiff be nonsuited or a verdict “pass against him in any action” &c. “upon a wrong “personal done to the plaintiff or in any action” &c.“up- “ on any specialty made to the plaintiff, or upon any contract supposed to have been made between the plaintiff “ and any other person.”

This first statute allowing costs to a defendant, has been very properly construed as not applying to an action by an executor, upon a contract with his testator, or for a wrong done to his testator. And no subsequent statute, which can operate here, has extended a defendant’s right to costs, in an action against him by an executor, upon a cause of action which had accrued only to his testator, or for a breach of a contract with his testator.

jt has been often adjudged in this State, as well as in England, that, in such a case as this, there is no statute or-principle of the common law which entitles a defend-1 r . . . ant to any judgment-lor costs (either de bomspropriis or bonis testatoris,) against a plaintiff suing in autre droit, for a kreach °f a contract with the deceased person whom he represents. See Grimstead vs. Shirley, 2 Taunton, 116; Baynham vs. Matthews, Strange, 871; Cooke vs. Lucas, 2 East. 395; Hollis vs. Smith, 10 Ibid. 293; Tattersall vs. Groote, 2 Bos. &. Pul. 255; Barnard vs. Higdon, 1 Chittys Rep. 184; Combre vs. Hardcastle, 3 Bos. & Pul. 115; Thornton, Executor of Champ, vs. Jett, 1 Washington’s Va. Rep. 138; Carr’s Executor vs. Anderson, 2 H. & M. Va. Rep. 369; Jameson’s Administrator vs. Young, 2 Littell's Ky. Rep. 387; Caperton, Administrator of Carr, vs. Calison, 1 J. J. M. 396; Hutchcraft’s Executor vs. Gentry et al. 2 Rid. 499.

_ . ,, ,, , , . . .... It is equally well settled; however, by adjudged cases, ^at a defendant may be entitled to a judgment for costs against an unsuccessful plaintiff, who, as executor, sued him on a cause of action for which the suit either should, or might, have been brought in the plaintiff’s individual right or character — in which case costs may be adjudged against the plaintiff, de bonis testatoris si, vel non, de bonis propriis. 2 H. & M. 369, supra.

And it has also been adjudged in England, that a plaintiff, who has abused his fiducial privileges by wantonly prosecuting in a representative character, a groundless suit, or has vexed a defendant by culpable default, may, in the discretion of the Court in which the suit is pending, be compelled personally to pay special costs, as a penalty for contempt, and as some reparation to the party who has been thus inexcusably subjected to vexation and expense.

But in this last class of cases — the judgment not being for costs, as costs, and the question of malconduct or contempt not being involved in the issue, or litigated between the parties — the plaintiff should, by rule or otherwise, have, an opportunity to exonerate himself from apparent or imputed misconduct, and the order, if one should be made, directing a taxation against him, should be special, showing that he was either heard, or had been cited to show cause, and showing also the cause and extent of the taxation by the clerk. A general judgment merely for costs, as costs, would, of course, be erroneous, in such a case. Williams on Executors, and Combre vs. Hardcastle, supra.

It may be possible, that the costs were adjudged in this case, in consequence of supposed misconduct in prosecuting a vexatious action, knowing it to be groundless. But the judgment is general, and in the usual style of ordinary judgments for costs where costs are given by law; and we have no right to presume, what the record does not intimate, and what does not appear to have been either tried or adjudged. Therefore, even if we should recognize the British doctrine and practice on this point, (a matter we need not now determine conclusively,) the judgment in this case for costs, could not be sustained.

Wherefore, the judgment for costs must be deemed erroneous, and must therefore be reversed.  