The sci. fa. set out an absolute judgment in favor of the plaintiff for $47.07 1/2, the amount of assets in the hands of the defendant, and also for 49.55 the plaintiff's costs, and judgment quando for a large sum. An execution de bonis testatoris was recited with a return of satisfaction, of the assets found to be in the hands of the defendant, and nulla bona as to the costs. No devastavit was suggested in the sci. fa.
PLEA — Nut 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 pleas were Performance — Plene administravit — Former judgments and no assets ultra. On these pleas a verdict was returned for the plaintiff, and on that of plene administravit, the finding was, "that the defendant hath not fully administered, and hath assets in his hands to the amount of $47.07 1/2." Whereupon judgment was rendered as recited in the sci. fa. and the plaintiff appealed.
His Honor Judge Norwood, at LINCOLN on the last Fall Circuit, dismissed the sci. fa. and the plaintiff appealed. The proceedings throughout have been irregularly conducted, *Page 476 and the entries inaccurate, and the case is brought here in a form which is far from presenting the points distinctly. (582) No case is stated in the record, on which the opinion of the Court was given. But to the 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 nultiel 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 former suit the plaintiff was entitled to judgment for costs, de bonis propriis of the executor. With reference to that we have looked into the record, and we are 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 specified 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 quando 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., 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 quando, where the issue upon a general or special plene administravit is found for the defendant. Battle v. Rorke, 12 N.C. 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 $47.07 1/2 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.
This has been so often decided, that it can hardly be (583) 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 *Page 477 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 presenti orquando, as the case may be, for the debt to be levied de bonistestatoris, and for the costs, presently to be levied de bonis testoriset si non, de bonis propriis. So it is laid down, I Saund. 336, 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 and entries. The adjudications in our own courts have been repeatedly accordant. Parker v. Stephens,2 N.C. 218. Hogg v. White, Ib., 298. Teasdale v. Branton,3 N.C. 377. It is only when the executor succeeds on an issue on some one plea which 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 plea of plene administravit, either generally or preterit is, upon the same principle, only when found altogether for the defendant (that is, either that he has no assets or none beyond the sum confessed, so that the judgment would be in England, that he go without day, and here, quando for the whole sum in dispute in the issue), that the defendant is entitled to costs. Wellborn v. Gordon, 5 N.C. 502. Battlev. Rorke, 12 N.C. 228. For every judgment on a verdict on issues, must be for costs against one of the parties, and it is clear that the executor cannot recover his costs where neither of his pleas proves a bar to the plaintiff. Consequently he must pay them. It is just that he should, if he has any (584) assets and did not confess them truly, for if he had, the plaintiff might have accepted them and taken judgment immediatelyquando, 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 bonis testatoris only, or de bonis propriis, it is according to Sergeant Williams' 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 Teasdale v. Branton,3 N.C. 377, which has since been followed.
It is not competent for this Court to pass in the first *Page 478 instance, on the issue joined on nul tiel record, but the cause must be remanded to the Superior Court for that purpose.
The judgment must therefore be reversed, and a procedendo awarded.
PER CURIAM. Judgment reversed.
Cited: Lewis v. Johnston, 69 N.C. 394.