#### Jesse Battle, adm’r. *v.*John Rorke.

From Wake.

A Judgment *quando*is a Judgment in frvor of tlie Defendant, who is therefore entitled to his costs.

Error from the Superior to the County Court, and upon the return the case was, that the Plaintiff in error had in the County Court plead *non assumpsit,*payment, a set-off and *plene administraron,*to an action brought by the Defendant in error. Thp Jury found a verdict for the Plaintiff below upon the three first pleas, and for the Defendant upon the last. Judgment *quando*was entered up for the damages and costs of the Plaintiff be*229low, and *s<*as to the costs of the Defendant in this behalf expended, it is considered that lie be without day, &c.”

The error assigned was, *“*that the judgment aforesaid, in form aforesaid, was given for the said Jesse *Battle,*against the said *John Enrke,*but by the judgment aforesaid, the said *Jesse Battle*does not recover his costs and charges, &c.”

His honor Judge Paxton, on the Spring Circuit of 182,6, reversed the judgment and awarded restitution. Whereupon the Defendant in error appealed.

*W. H. Haywood,*for the Appellant.

The whole doctrine of *costs*at law, is to be derived from our act of 1777, by which it is enacted, that in “ all actions whatsoever the party in whose favor *judgment*shall be given shall be entitled to full costs, &c.” and so here, since the Plaintiff in error was not entitled to judgment, he cannot recover costs. *(Rev.*Code, 318, c. 115, s. 90).

The Defendant in error was entitled, upon the pleadings and verdict, to a judgment *quando.*If there were any doubt of this at common law, our act of 1794 expressly ' recognizes it, and the uniform practice of the Courts in this State supports such exposition of the law. *(Rev. Code,*754).

It is no answer to say, that it is a hardship upon the administrator to compel him to pay the whole costs, when he has supported his plea of *plene adminisiravit;*for it is equally a hard case upon the creditor who loses his *debt,*to require of him to pay also the costs of the administrator.

The cases to be found in the English books are not authorities here, because by the *Stat. 2.3 Hen.*8, *c. 15,*the costs are regulated by the *verdict,*and not by the *judgment.*(2 *Bacon’s Jib. Gwillim’s cd. p.*44). *230*F*It is not contended by the D efe ml ant in error, that he has aright to recover his costs of the Plaintiff in error, but that he must have judgment for them *quando,*as well as his *debt;*and that the administrator can have no costs *against*him, for he has and is entitled *to, judgment*— the form of which it is submitted cannot be material under the act of *17-77.*

*Beverenx,*contra.

According to the rules of pleading, a Defendant in whose favor tiio issue of *viene admi-stravit*is found, is entitled to judgment, that the Plaintiff take nothing by his bill.

This is in strict accordance with the form of the plea, which begins with *¿¡dio*non, and concludes with a prayer of judgment whether the Plaintiff ought to have and maintain, &c.

In England, *judgments quando*are only entered up when the Plaintiff, in his replication, admits the truth of the plea, and prays judgment *quando;*or where, on. the trial, hefixes the Defendant with assets, although to a very small amount. In the.last, case, he obtains judgment and execution for the amount of assets and for his *costs;*with an entry of judgment (¡'Mando as to the residue.

The rule was not thus settled without difficulty ; some Judges contended in the first case, that the Plaintiff having confessed a matter which was a complete bar, he was out of Court *i*in the latter, it was insisted, that as he had negatived the plea, every plea being an unit, he was entitled to judgment and execution for his whole debt. *(Shipley’s case,*8 *Hep. 134*— Dorchester v. *Webb, Cro. Car. 372*— Noel v. *¡Nelson,*1 *Vent.*94. *Per Hobart argu-endo in Brickhead*v. *Archbishop of York. Hob.*197, 199, *Wentworth*274 *to*276).

It is clear, from the modern cases, that the Plaintiff, where he does not fix the Defendant with assets, the is» sue of *plena admiimlravit*being found for the latter, id *231out 0f Court as to that action, and it is not clear but that lie is forever barred. At all events the Defendant recovers Ids costs. *(Hogg*v. *Graham,*4 *Taunt.*135— *jiagg*v. *Wills,*8 *do.*1¿9). The. rule may be said to be universal, both in England and under our statute of 17/7, that the party who prevails in the action recovers his costs. The difference contended for on the other side, between the *verdict*and the *judgment,*is not admitted, and will be found, on examination, to be untenable.

The practice in this State has differed from that adopted in England. Judgments *quando*arc, and always have been entered upon verdicts establishing the amount of the demand, and the truth of the plea of *plene admi-nistravit.*This practice is conceived to have had its origin in a mistaken construction of the act of 1784, c. 226. This indulgence extended to Plaintiffs can be no reason for subjecting Defendants to costs, who have committed no wrong, and against whom the Plaintiffs have no right — right and wrong being the mothers of actions. *(Per Lord Hobart ubi supra. )*

If it be objected that the Defendant has caused costs *to*accrue, by pleading several pleas, the answer is, that by law he has this right. Besides, if there be any thing in it, it must equally extend to'every case where double pleas are put in, as for instance, where in trespass *not gxdlty*and a special justification are plead, the last of which is found for the Defendant, yet nothing can be clearer than that he recovers his costs on such, a verdict.

Tayeor, C(lief-Justice.

This case depends upon the construction of the act of 1777, concerning costs, and the principles of pleading as applicable to the particular defence relied upon by the administrator. The act *provides,*that in ail cases whatsoever, the party in whose favor judgment shall be given, shall be entitled to full costs, uuless where it is or may be otherwise directed by *232statute. Was judgment given in favor of the Defendant in the original action ? No rule of pleading is better *°*° settled at common law, than if the Plaintiff joins issue upon the plea of *plene*administravit, and it be found against him, the judgment is that he take nothing by his bill, Jn such case, the Defendant goes without day, and the Plaintiff is concluded from all further proceeding against him. It is only where he confesses the plea to be true, thpt the Plaintiff is entitled to a judgment *quan-do. (Cro. Cur.*373. *Comyn’s Pleader 2 D.*9.) It has also been lately decided, in the case of *Hogg*v. *Graham,*cited from 4 *Taunton,*134, that if upon the pleas of *non assumpsit*and *plene administravit,*the Plaintiff joined' issue, and omitted to pray judgment of assets *quando,*the first Issue being found for the Plaintiff, and the second *for the Defendant,*the Defendant is entitled to the postea and *general costs.*

An exceptionto the rule of praying judgment *quando*is made by our act of 1794, in those cases where the administrator sells upon a credit, and the money has not been recen ed at the time of trial. There it shall be liable to the satisfaction of judgments previously obtained, and entered up as judgments when assets should come to the hands of the executor or administrator. It is necessary however, in that case, to bring the administrator in again upon a *scire facias.*— As to the question of costs, it was decided in *Wellborn*v. *Gordon,*(1 *Mur.*502) to which the practice has since conformed.-1-think the judgment should be affirmed.

Per curiam. Judgment affirmed.