
    Thomas Frink, & Co. ads. William Luyten, Administrator of Hunt, deceased.
    
      Charleston District,
    
    
      1798.
    
    Where exe-fcutors ami administrators sue in right of their testators or intestates, and are non-suited or fail in their suits, they are not liable for costs.
    
    Bat where they are defendants, they are liable, and judgment shall be de bo-ms testator is.
    
    If an executor sue for a trespass or conversion after the death of the testator, where he need not name him.^ef executor, or for a cause of action of which he is conu-sa?ct} in such cases, he shall he liable if he fail in his action, or become nonsuit.
    I Bac. Jlbr. SIS.
    
    MOTION to set aside a judgment, and ca. sa. against an administrator, for costs.
    The defendants in this case, were sued by the administrator of Hunt, for the balance of an account which was apparently due to the estate ; but owing to a discount which was brought in against this demand, the plaintiff did not think proper to proceed in the action, and suffered a nonsuit.
    The defendants’ attorney entered up a judgment on this suit, against the administrator of Hunt, de bonis propñis, and took a ca. sa against him, on which he was taken j this, therefore, was a motion to set aside the judgment as irregular, and to have Luyten discharged from the custody of the sheriff on the ca sa.
    
    
      ■ Mr. Fraser, in support of the motion,
    laid it down as a general rule of law, that executors and administrators where they are plaintiffs, pay no costs ; because they come in autre droit, and not in their own right; besides, they are bound by oath to recover the rights and credits of the testator or intestate, it would therefore be most unreasonable and unjust, to make them liable for costs. Another objection in the present case, he said, was, that the suit was in the name of the administrator in right of the intestate, and upon this record he had entered a judgment against him de bonis propriis, which was a repugnancy, the judgment not being consistent with the record.
    Mr. Bailey, for defendants,
    -relied on 3 Burr. 1451o where it is said, an executor shall not have leave to discontinue, unless on payment of costs, where he knowingly brings a wrong action. Also on 3 Burr. 1584. where it is said an executor shall not pay costs on a non pros, but he shall ir he does not go on to trial agreeable to notice.
    si H. vi. is. tangir. & ^ °'
    j ñac. 5i8’
    tl Mod. 135.
    u Mad. ir¿.
    
   The Court

was of opinion, that the judgment de bonispro-priis in this case was irregular, and that the administrator should be discharged from the ca. sa. wLh costs. They laid it down, that an executor defendant pays costs in all cases, and the judgment is de bonis testatoris ; so where there is judgment for him in cases where he is defendant, he shall have costs. 1 Bac. 517. Bro. Executor, 164. Plowd. 183. So likewise in equity, costs are usually awarded out of assets. Eg. Cas. Abr. 125. But an executor or administrator is not within the meaning of the statutes, which give costs to a defendant after verdict or non-suit, when they are plaintiffs ; in ah those cases, where they are plaintiffs, they pay no costs, because (as has been said before) they are in autre droit, and are but trustees I or creditors, and are not presumed to be sufficiently conusant of the personal contracts of those they represent. Whenever, therefore, there is an apparent right, it is their duty, and they are bound to pursue it, though it turn out eventually that there is a good defence against the action ; as in the present case, it turned out that there was a good discount, which the administrator might have known nothing about. If, however, an executor or administrator bring an action in their own right, as for a conversion or trespass in their own time, of which they are conusant, they shall pay costs ; or if they bring assumpsit for money received after the death of the testator, and become nonsuit, they shall pay cosis ; for the law gives this privilege to executors, of not p n ing costs, only where the cause of action accrued in the testator’s lifetime, and there only, because they are not supposed to be conusant ox privy to the acts of the testator.

So also in cases where an executor brings an action where he need not name himself executory and it goes against him, he must pay costs.

Salk. 314.

3 Bun-. 1584.

The goods of the testator are assets in the hands of an executor; he has a qualified property in them ; he is not obliged to name himself executor in an action of trespass or' trover for them, if the trespass or conversion is since the testator’s death ; therefore it is, in case of nonsuit, that he is liable for costs. So also, if an executor will not go on to trial, agreeable to notice, the defendant shall not be needlessly harassed ; he shall pay costs in such cases. Salk. 314. Mod. Cas. 93. These, the court observed, were in general the cases where executors and administrators are exempt or liable for costs ; but there might be other cases, either of liability or exemption, which depend upon peculiar circumstances, not taken notice of above, as in the case quoted by defendants’ counsel from 3 Burr. 1451. which was a case where the executor brought an action to harass the defendant, knowing it to be a wrong action ; there he was made liable for costs. But in the case under consideration, they saw nothing oppressive in it, or which took it out of the general rule of law, in exempting executors and ad« ministrators from costs, who endeavour to recover the bona fde debts and rights of their testators or intestates.

Rule made absolute for setting aside the judgment, and discharging the administrator from the arrest, with costs.

Present, Burke, Grimke and Bay.  