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![handle is hein.slavery/ssactsengr0014 and id is 1 raw text is: 6IGGS V. WARRY
The Court, being of this opinion,
Quashed the order of sessions.
Scarlett was to have argued on the other side.
HiGGS, Administratrix, against WARRY. Saturday, April 30th, 1796. Executors and
administrators, plaintiffs, are liable to pay the costs of a non-pros. [Ante, 4 T. R.
277. Willes, 316. 3 B. & P. 115.]
The defendant having demurred to the plaintiff's declaration because it did not
appear in the profert by whom the letters of administration were granted, the plaintiff
did not join in demurrer, and the defendant signed judgment of non-pros in the last
term. And this was a rule, calling on the defendant to shew cause why so much of
the judgment of non-pros as related to the allowance of costs to the defendant should
not be vacated.
Best and Peake now shewed cause against that rule. The principle on which it has
been held that executors and administrators should not in certain cases pay costs,
namely, because they are not supposed to know all the demands of their testators and
intestates, does not apply to the present case, for here the failure by the plaintiff was
owing to her own default in not stating that which the rules of pleading require. In
Hawes Executrix v. Saunders (a)l it was held that all executor should pay the costs of
a non-pros, but not the costs of a discontinuance. And there Lord Mansfield observed,
The privilege of executors is too great already: they ought to be properly informed
before they bring actions. So in Lamley v. Nichols (b)1 it was held that a plaintiff
executor was liable to pay the costs of a non-pros. But even if the defendant were
not entitled to costs, as this was a judgment of the last term, this is not the proper
mode of correcting the mistake ; the plaintiff should be driven to her writ of error.
Marryat in support of the rule. There is no foundation for the last objection, there
being no general rule that a motion cannot be made in a subsequent term
to set aside a judg-[665]-ment of a preceding term; and in a variety of instances,
where a judgment is improperly signed in the vacation, the party objecting
to it must have an opportunity of moving in the next term to set it aside. With
regard to the principal point; the authdrity of the case of Lamley v. Nichols
seems questionable, because it is there doubted whether an executor is not even liable
to pay costs on a judgment of non-suit, which is contrary to all the decisions on the
subject. And as to the case of Hawes v. Saunders, Sir J. Burrow has subjoined a note
to the report of it that destroys its authority ; Note, the two late prothonotaries of
C. B. Sir G. Cooke and Mr. Borret held and acted differently upon the present ques-
tion, i.e. upon a non-pros. Besides which there is a subsequent case in Burr., Bennet
Administrator v. Coker (a)2, that impeaches the prior decision ; for there an administrator
had leave to discontinue without payment of costs. So in Baynham v. Matthews (b)2 it
was held that all administrator might discontinue without payment of costs. Neither
does it appear in Hawes v. Saunders whether it was an action on promises made to the
intestate or the administrator; for any thing that appears on the record the promises
may have been made to the latter : whereas here the cause of action arose in the life-
time of the testator. In Creeke and Others v. Pitcairne (c) it was held that the adminis-
trators were not liable to pay the costs of a nonsuit, though they gave no evidence at
Nisi Prius. Now there is no reason why a distinction should be made in this respect
between a judgment of non-pros and of nonsuit; they are both an abandonment of
the suit, with this circumstance indeed in favour of the latter that there he does not
pay costs though he fail owing to his own default in pleading, notwithstanding he
puts the defendant to greater expence than if he suffer judgment of non-pros to be
signed against him before trial.
Lord Kenyon Ch.J. I am inclined to adopt the cases relied on by the defendant;
because it is hard that executors and administrators, who have been in fault, should
be excused paying the costs. Here the action has produced no fruits, and the
administratrix has been in fault; then as she has proceeded improperly, the question
is, whether she ought not to pay costs?7 I think it reasonable that she should. If the
(a)1 3 Burr. 1584. (b)' Say. Costs, 94. Sir G. Co. Pract. 14.
(a)2 4 Burr. 1927. (b)2 2 Stra. 871.
(c) Barn. 127 ; Sir G. Co. Pract. 157.
755
6 T. R. 655.](ViewImageLocal?handle=hein.slavery/ssactsengr0014&div=1&collection=&method=preview&ext=.png&size=3)