#### Samuel King, Chairman, &c. v. Benjamin Howard.

Executors, when they are defendants, have generally no privilege as to costs, and are subjected to them, unless some plea to the whole action he found In their favor. And whore upon plene administravit, the defendant was fixed with assets, as to part of the plaintiff’s demand, the latter recovers his costs.

This was a Scire Facias against the defendant to have execution cle bonis pr opr Us, for the costs of a former action of debt brought against the. defendant as the executor of John Howard.

The sci.fa. set out an absolute judgment in favor of the plaintiff for g47 07i, the amount of assets in the hands of the defendant, and also for g49,55 the plaintiff’s costs, and judgment quaiulo for- a large sum. An execution de bonis teslatoris was recited with a return of satisfaction, of the assets found to be in the bands of the defendant* and nulla bona as to the costs. No de-vastavit was suggested in the sci.fa.

Piusa — JSFal tiel Record.

From a copy of the record of the former suit, which, was filed with the transcript, it appeared that the action was debt on a bond with a condition. The jileas wore Performance — Flene administravit — Former judgments and no assets ultra. On these pleas a verdict was returned for the plaintiff, and on that of plene adminislra-vit, the finding was, “ that tlio defendant hath not ful- “ 3y administered, and hath assets in his hands to the amount of $47 07s. Whereupon judgment was rendered as recited in the sd.fa.

His honor Judge Norwood, at Lincoln on the last Fall circuit, dismissed the sci.fa. and the plaintiff appealed.

Pearson, for the plaintiff.

No counsel appeared for the defendant.

Rtjejfin, Chief-Justice.

After stating the case as above, proceeded. — The proceedings throughout have been irregularly conducted, and the entries inaccurate, and the case is brought here in a form which is ' far from presenting the points distinctly. No case is *582stated in the record, on which the opinion of the court was given. But to tiie transcript of the present suit is annexed a transcript of the former one, which we cannot suppose was meant to enable this court to pass on the issue on mil del record, but was intended to form the case on which the point actually decided, arises.— That point as we understand it, is whether in the for-'* mcr suit the plaintiff was entitled to judgment for costs, de bonis propriis of the executor. With reference to that we have looked into that record, and we arc of opinion that he was.

. To that action the pleas were, conditions performed, fully administered, former judgments, and no assets ultra. No particular sum is mentioned in the last plea, as confessed in this action. The assets admitted must consequently be understood to be such only as were charged with the judgments previously rendered, and mentioned in the plea. If the plea had spcciiied the sum, and the plaintiff had taken issue on it, that the defendant had assets to a larger amount, and that had been found for the defendant, he would have been entitled to judgment for costs against the plaintiff; for at common law, there could not have been a judgment guando for the residue of the debt, since the plea went to bar the action for the whole residue, and had been found for the defendant. (Hogg v Graham, 4 Taunt. 135.) Marshall v. Wilders, 17 Eng.C.L.Rep.467. This has been adopted as the rule here, it being held that the right to costs is not altered by our practice, introduced under statutes, of rendering judgments guando, where the issue upon a general or special plene adminis-travit is found for the defendant. (Battle v. Rorke, ante 1 vol. p. 228.) In the case before us however, all the issues were found for the plaintiff, and upon both the general and special plene administravit the verdict is, that the defendant had assets to the value of g47 over and above the judgments with which he would have satisfied so much of the plaintiff's demand. The question is, whether in such a case the executor is liable for the costs at all events.

*583The cases of Parker y. ste-ijiens, fl May. 2i8,y Hoggv. NaJía-lo v. Branton, ^Weiiborn^v Gordon,' fl Battle' Borke, (ante approved.228’^

This has been so often decided, that it can hardly he called a question at this day. Executors, when defendants, have generally no privilege as to costs, but may make themselves liable to them, even when there are no assets, and when the plea was not untrue to their own knowledge, unless some one of the pleas which goes to .the whole cause of action, be found in their favor. If he plead plene administravit, in whatever form pleaded, and it be found in any part false, or if it be, as pleaded, confessed by the plaintiff, and issue be joined on any other plea or pleas, on which the verdict is generally against the defendant, the judgment is in presentí or qnando, as the case may be, for the debt to be levied de bonis testatoris, and for the costs, presently to be levied de bonis testatoris et si non, de bonis propriis. So it is laid down (1 Saund. 536, note 10,) by Sergeant Williams, whose writings have, after a scrutiny of many years, been found so accurate as to be now deemed of the text of the common law, especially upon the heads of pleadings an(j entries. The adjudications in our own courts have ' been repeatedly accordant, (Parker v. Stephens, 1 Hay. 218. Hogg v. White, ib. 298. Teasdale v. Branton, 2 Hay. 377.) It is only when the executor succeeds on an issue on some one plea \\Inch goes to the whole cause of action, that he is entitled, to costs, and in such case he is entitled, although he may have failed upon other pleas put in by him. (Cockson v. Drinkwater, Dougl. 239. Hindsley v. Russell, 12 East. 232. Hogg v. Graham, 4 Taunt. 135.) And as to the verdict on an issue on the particular pica, of plene administravit, either generally or preeter, it is, upon the same principio, only when found altogether for the defendant, (that is, either that he has no assetsor none beyond the sum confessed, so that the judgment would be in England, 'that he go without day, and here, qnando for the whole sum in dispute in the issue,) that the defendant is entitled to costs-. (Wellborn v. Gordon. 1 Murph. 502. Battle v. Rorke, ante 1 vol. 228.) For every judgment on a verdict on issues, must be for costs against one- of the parties, and it is clear that the execuioi’ cannot recover his» *584costs where neither of his picas proves a bar to the plaintiff. Consequently he must pay them. It is just that lie should, if he has any assets, and did not confess them truly, for if he had,theplaintiff might have accepted them and taken judgment immediately quando, for the residue of the debt. The pleading of the executor compels the plaintiff to incur the expense of a trial, and these expenses must be paid by him through whose fault they accrued. .

The judgment does not seem to have been entered at length, but if it had been, and expressly de bmis testa-taris only, or de bonis propriis, it is according to Sergeant William’s note amendable, even after error brought. We think it ought to be made conformable to the rights of the parties, and also that judgment may be rendered on this sci. fa. for costs without a suggestion in it of a devastavit, as is laid down in Teasdell v. Branton, which has been since followed.

It is not competent for this court to pass in the first instance, on the issue joined on mil tiel record, but the cause must be remanded to the Superior Court for that purpose.

The judgment must therefore be reversed, and a pro-cedendo awarded.

Per Curiam. — JudgmeNt reverses.