This is a petition to rehear a judgment of this Court at June Term, 1872, (67 N.C. 38.) The question now presented is this: An action is brought against an administrator upon a note of his intestate. The administrator pleads non est factum and fully administered. The plaintiff at the term at which the pleas are made admits the plea of fully administered, and at the same term the issue on the plea of non est factum is submitted to a jury and found for the plaintiff, who thereupon takes a judgment quando. Does the plaintiff recover the costs of the action against the administrator, or does the administrator recover them against the plaintiff?
It will be seen that the question now presented is substantially different from that which was decided when the case was last before us. Then it appeared that the plaintiff took issue on both the pleas. Now it appears that he admitted the plea of fully administered at the same term at which it was pleaded, and that the trial of the issue on the making of the note took place at the same term. The counsel for the plaintiff contends that the difference is material, and that as the case is presented on the present record, he ought to recover costs.
We may concede that by the English law, at least as it stood in 1829, the plaintiff would recover costs in a case like this. The authorities for this are 2 Williams Exec'rs 1,793, and the decision of the Court of K.B. inMarshall v. Wilder, 9 Barb. C. 655(17 E.C.L.R.)
Strange as it may seem, there is not an authority in this *Page 394 State bearing with any directness on the question. We have examined all that might be supposed to do so. The first is Wellborn v. Gordon, 1 Mur. 502, (1810.) In that case the administrator pleaded non assumpsit and fully administered, and the plaintiff took issue on both pleas. On the trial the first issue was found for the plaintiff, and the second for the defendant, who was held entitled to recover costs. It will be seen that this case is not in point, as the plaintiff, instead of admitting the plea of fully administered, took issue and went to trial upon it, when it was found against him. The decision is in conformity to the English law in a like case as stated in the case of Marshall v. Wilder, ante, and in Edwards v.Bethel, 1 B. A. 234, and fully sustains the decision in 67 N.C. Rep. upon the record then presented.
In Battle v. Rourke, 1 Dev. 228 (1827), the defendant pleaded pleas denying the debt and also fully administered, upon all of which the plaintiff took issue, and the jury found the first pleas for the plaintiff and the last for the defendant. Thereupon the plaintiff took judgmentquando. This case is but a repetition of Wellborn v. Gordon, and therefore not in point. In Leigh v. Lockwood, 4 Dev. 577, the question was whether an administrator against whom a judgment had been recovered for selling corn of the plaintiff, which he believed to be the property of his intestate, was entitled upon a settlement of his administration account, to be allowed for the costs paid by him under the judgment in that action. Obviously that case has no bearing on the present.
In King v. Howard, 4 Dev. 581 (1834), the administrator had pleaded performance, fully administered, former judgments and no assets ultra, all of which were found against him. He was held liable for the costs de bonispropriis. This case has no bearing.
Griffith v. Byrd, 2 Ired. 72, was a petition for a distributive share in the nature of a suit in equity, and has no bearing. *Page 395 Terry v. Vest, 11 Ired. 65, relates entirely to a case where an administrator establishes his plea of fully administered before a jury, and hence is not in point.
The first and only authority we have found bearing on the question before us is the dictum of DICK, J., in delivering the opinion of the Court in McDowell v. Ashbury, 66 N.C. 456, which is certainly an authority that the law had once been as the defendants contend it now is, but it was not necessary for the decision of the case, which is that C.C.P. abolishes the writ of scire facias only as original process, and that it, or something equivalent to it, may still be used as mesne process.
But notwithstanding the English authorities, and the entire want of reported decisions in this State, bearing directly on the precise question, it must be admitted that for many years past the practice has been in case similar to the one before us, to give the administrator his costs. It was probably an inference from the decisions cited, and is not opposed by any of them. In the absence of any opposing decision, we consider ourselves bound by this long, general and well known practice which seems not unreasonable or unjust. It is a maxim, "optimus interpres usus.
For this reason we think the former decision in this case right, notwithstanding the change in the facts, which we consider an immaterial one.
We are the less disposed to depart from what may be called a settled practice as far as any can be, not resting on reported decisions, because since this action was begun the Code of Procedure has gone into effect, which somewhat changes the former practice. C. C. P. sec. 287, gives to a Court before which an action against an executor is tried, power to impose costs on him personally, only for mismanagement or bad faith.
PER CURIAM. Rehearing denied. *Page 396