By the Court,
Paine, J.We see no error in the rulings of the county court on the trial. The authorities relied on by the appellants to show that the suit should have been brought by the plaintiff in his individual, and not in his *421representative capacity, do not sustain tbe position that it must be so brought. They only show that it may be, the clear implication from all of them is, that it may also be brought by the administrator, as such, of which there can be no doubt.
The evidence of the defendants as to what occurred in transactions to which the plaintiff’s intestate was a party, was therefore properly excluded, and its exclusion would seem to have been clearly in accordance with the spirit of the law on that subject, even if the suit had been brought by the plaintiff in his individual capacity. For even then the litigation would have affected only the estate of the deceased, and it was the policy of the' law that in such litigations, where the evidence of one of the parties to the original transaction out of which the litigation arose, could not be had, that of the other should not. It is true, the application of the rule worked some' apparent hardship in this case, growing out of the facts that the mortgage had been destroyed, that one of the subscribing witnesses had forgotten in regard to it, and the other was one of these defendants. But such a peculiar state of facts, which could very seldom exist, cannot be allowed to change the law.
The motion for a nonsuit was properly overruled. The appellants claim that the evidence was not sufficient to connect the defendant Munyan with the taking of the property. It is true that, on cross-examination, the plaintiff’s witnesses did not show a very thorough acquaintance with this defendant, but they described the man whom they “ took to be” Munyan, as “ a red-whiskered man.” It appears that he was in court, and the jury would have been warranted in finding against him on this evidence, if he answered the description and nothing was offered to rebut it. Whether he did answer the description or not, the bill of exceptions ' does not disclose; and we certainly could not say that a mo tion for a new trial should have been granted upon a question of identity, where the evidence described the party sought to be charged, and the record did not disclose whether that description was applicable to the party in court or not. For the court and jury are undoubtedly at liberty to *422look at parties in court in determining questions of identity, and no appellate court could reverse a judgment for a refu-s£q to nonsuit upon tbis ground, unless it was made to appear that the description was entirely inapplicable to the party objecting to the sufficiency of the evidence.
But we think the court should have granted a new trial upon the ground of newly discovered evidence. The affidavits upon this point are very satisfactory. The evidence supplies the defect in the defense so far as the existence of the mortgage was concerned; and there can be no ground for imputing laches to the defendants for not having previously obtained it. It comes from a son of the the intestate, and the defendants certainly cannot be charged with negligence in not going into his family for evidence to sustain their defense. It was said on the argument here, that the court below denied this motion for the reason that the defendants had not, on the trial, offered the testimony of Gregory, the other subscribing witness to the mortgage. But we think they should not have been held bound to such an apparently useless attempt. The affidavits show that Gregory was applied to, and said he had forgotten the fact of the execution of the instrument, and it being destroyed his memory could not be refreshed by inspecting it. This is certainly not very unnatural. There are very few who sign instruments as witnesses merely, who would be able to testify to their execution at any considerable time afterwards, without refreshing their memories with the instrument themselves. Gregory therefore having forgotten, we do not think the defendant should have been held bound to call him on the stand, and have him swear that he had forgotten, as a condition precedent to the right to avail themselves of newly discovered evidence, if they were fortunate enough to discover such after the trial. >
For this reason we think the judgment should be reversed, with costs, and a new trial ordered.
A subsequent motion in this court by the appellant, for a judgment for costs against the respondent, was disposed of in the following opinion.
*423 By the Court,
PAINE, J.Tbe appellant’s attorney has moved for a personal judgment against tbe respondent costs. Tbe conversion complained of occurred after tbe death of tbe plaintiff’s intestate, and it is claimed that as tbe suit might bave been brought by tbe plaintiff in bis own name, without suing in bis representative capacity, therefore be shall be personally liable for costs. This was undoubtedly tbe old rule, as tbe cases cited abundantly show. But I am obliged to confess that I bave never been able to see tbe reason of this distinction. An administrator suing for a conversion of tbe property of tbe estate after tbe death of bis intestate, is suing just as much for tbe benefit of tbe estate and just as little for bis own benefit, as in a suit for a conversion during tbe intestate’s lifetime. There may be a technical difference in tbe two cases as to tbe necessity of bis disclosing bis representative capacity. But tbis seems to me entirely immaterial upon the question whether be ought to be personally liable for costs, which ought in both’ cases to depend on tbe question whether be has been guilty of mismanagement or bad faith in bringing tbe action. And I think tbe statute has accordingly abolished tbe old distinction, and provided that in neither case shall executors or administrators be liable to costs personally, unless tbe court shall specially direct it on account of mismanagement or bad faith. R. S., 1858, chap. 133, sec. 49; Woodruff v. Cook, 12 How. Pr. R., 481.
Tbe only reason' for doubt upon tbis point, is tbe existence of sec. 13, chap. 103, which provides that “ when costs are allowed against an executor or administrator, execution shall not issue against tbe estate of tbe deceased in bis bands, but shall be awarded against him as for bis own debt; and tbe amount paid by him shall be allowed in bis administration account, unless,” &c. Tbis seems directly repugnant to tbe other section, and perhaps there is no way of reconciling them, unless it may be done by holding tbe section just quoted to relate only to cases and proceedings in tbe probate courts. It is found in a chapter relating entirely to tbe proceedings in those courts and to tbe rendering of accounts by executors and administrators. Those courts may, in con*424^es^e(^ casesi S'-76 costs an(^ awar4 execution. Cbap. 117, secs. 36, 37. It may well be said tbat these provisions were intended only as guides for tbe probate courts, and tbat in other cases courts must look to tbe chapter designed specially to regulate questions of costs in courts of record. If there is a conflict, tbe provisions of tbe latter chapter must govern. See sec. 11, cbap. 191.
Whatever, therefore, may be'tbe proper construction of sec. 13, cbap. 103, we are satisfied tbat this motion should be governed by sec. 49, cbap. 133, and it is therefore denied, but without costs.