#### Harrison, Administrator, *v.*Warner.

An administrator-plaintiff, necessarily suing in his representative character, as on a contract entered into with the intestate, pays no costs though he fail in the suit.

If, however, he -mighthave sued in his own name, as on a contract made with himself, or for trover and conversion of the goods of the estate in his own time, he must pay costs in case of failure.

*So,*though he necessarily sues as administrator, he is liable for costs where he knowingly brings a wrong action, is guilty of wilful default, fails to prosecute his suit, or sues on a contract which he knows to be annulled.

ERROR to the *Vanderburgh*Circuit Court.

Holman, *J.*

Harrison, as administrator of *Zimmerman,*brought an action of debt against *Warner,*on a note executed by *Warner*to *Zimmerman*in his life-time. Plea, no consideration; and verdict for the defendant. The Court gave the defendant a judgment for costs, to he levied of the goods and chattels of the deceased in the plaintiff’s hands, to he administered, if to he had, and if not, of his own proper goods and chattels. The propriety of this judgment for costs, de bonis propriis, is the-only question.

It is a general rule, that when an administrator sues as such he is not liable for costs. *Elwes*v. *Mocata,*2 Ld. Raym. 865. Salk. *314.*— Portman v. *Cane,*2d Ld. Raym. 1413. 1 Strange, *682.*— Martin v. *Norfolk,*1 H. Bl. *528.- Booth*v. *Holt,*2 H. Bl. *277.*— Bennet v. Coker, 4 Burr. *1527.*— Willon v. *Hamilton,*1 Bos. & Pull. *445.*— Tattersall v. *Groole,*2 Bos. & Pull. 253. Tidd’s Pr. 892. But when he may. aue in his individual capacity it is otherwise; as on a contract made to himself as administrator or for a trover and conversion of the intestate’s goods iu. *386his own time. There, although he name himself as administrator, yet if he fail he must pay costs. *Jenkins*v. *Plume,*1 Salk. *207.*— Nicolas v. Killigrew, 1 Ld. Raym. *436.*— Cockerill v. *Kynaston,*4 T. R. *277.*— Goldthwayte v. Petrie, 5 T. R. *234.*— Bollard v. *Spencer,*7 T. R. *354.*— Cooke v. Lucas, 2 East, 395. And where he necessarily sues in auter droit, he may render himself liable for costs; as, if he should knowingly bring a wrong action, be guilty of wilful default, or fail to prosecute his suit. *Hawes*v. *Saunders,*3 Burr. *1584.*— Harris v. *Jones,*3 Burr. 1451. — Tidd, 415, 893. And in the case of *Comber*v. Hardcastle, 3 Bos. & Pull. 115, Tidd, 892, he was ruled to pay costs where he sued on a contract he knew to be annulled (1). In the present case, the action was necessarily brought in the plaintiff’s representative character, and no default, negligence, 'or improper conduct, is alleged against him; so that, according to the foregoing cases, there is. no ground to charge him with the costs in any event whatever. Had it appeared of record that he knew the note was given without consideration, it would have been otherwise: he might have been liabl.e for costs under the authority of *Comber*v. Hardcastle.

*Merrill,*for the plaintiff.

*Hall,*for the defendant.

*Per Curiam.*

The judgment is affirmed so far as it affects the goods of the intestate, and reversed with costs so far as it respects the proper goods of the plaintiff (2).

(1)

 In the case of *Comber*v. *Hardcastle,*cited in the text, it was consideredthatno judgment could be rendered for costs against an administrator-plaintiff, who had sued on a contract with the testator, and accordingly the judgment for the defendant was entered without costs. Yet since the plaintiff had sued on a contract, which, with his privity, had been previously annulled, he was ordered to pay the defendant his costs, as for a contempt in fraudulently abusing the process of the Court.

(2)

 Quaere, whether the whole of this judgment for costs should not have been reversed. At common law, neither party recovered costs. The *English*statutes, giving costs to defendants, are held to apply only to the cases where the contract was made with, or the wrong done to, the plaintiff himself. An. executor or administrator plaintiff, therefore, being a stranger to the affairs of the deceased, is considered not liable for costs when he acts bona fide, and could not have sued in his own right. 3 Bl. Com. 400. — Sayer on Costs, 94. In *Virginia,*costs are given in these cases; but to be levied only of the goods of the deceased, unless the Court certify the suit to have been imprudently brought, and then the judgment is de bonis testatoris, &c. si non de bonis propriis. Va. Stat. 1883.

Besides the cases cited in the text, as to where an executor or administra.*387tor plaintiff is exempt from costs, and where not, vide *Nunez*v. Modigliani, 3 H. Bl. *217.*— Higgs v. Warty, 6 T. R. *654.*— Melhuish v. Maunder, 2 N. R. 72.— *Hollis*v. Smith, 10 East, *293.*— Thompson v. *Stent,*1 Taunt. *322.*— Grimstead v. Shirley, 2 id. *116.*— Foulkes v. *Neighbour,*1 Marsh. Eng. R. *21.*— Zacha*riah*v. *Page,*1 Barn. & Ald. *386.*— Barnard v. *Higdon,*3 id. *213.*— Jones *et al.*v. *Jones,*1 Bing. *249.*— Dowbiggins v. *Harrison,*9 Barn. & Cress. 666.— *Fleming*v. *Tyler,*1 Johns. Cas. *102. — Exrs. of Mahany*v. *Fuller,*2 id. 209. *— Admrs. of Kellogg*v. *Wilcocks,*2 Johns. R. *377.*— Exrs. *of Cable*v. Long, 4 id. *190.*— Carlile v. *Bates,*8 id. *379.*— Smith v. *Lockwood,*10 id. 366.— *Tilton’s Admrs.*v. *Williams,*11 *id. 403.*— Salisbury’s Exr. v. Philips, 12 id. 289. *Brown*v. *Lambert,*16 id. *148.*— Hogeboom v. *Clark,*17 id. *268.*— Grouty v. *Chamberlin,*4 Mass. *611.*— Hardy *v. Call,*16 id. *530.*— Exrs. *of Getman*v. Beardsley, 2 Johns. C. R. *274.*— Goodrich v. *Pendleton,*3 id. 520.