Administrators of Tilton v. Williams

Per Curiam. The decisions in the English courts on this subject appear, to be very contradictory. (4 Term Rep. 277. 10 East, 293.) It is, however, well settled, that when the declaration contains only one count, stating the trover and conversion to have been in the lifetime of the intestate, the plaintiff, although he fails in his action, is not subjected to the payment of- costs. And it is equally well settled, that when the trover and conversion are laid to have been after the death of the intestate, and after letters of administration granted, if the plaintiff fails, he must pay costs; because there was no necessity for Ms suing in his representative character. If, therefore, the mode of declaring, which has been adopted in this case, be allowed, and which seems to be sanctioned by the authorities and precedents, it becomes necessary to inquire to which count in the declaration the proof applied, in order to prevent the defendant from being prejudiced, by the mere form of declaring : and no objection can arise to the receiving the certificate of the judge as evidence of that fact. Our act, which exempts executors and administrators from the payment of costs, when prosecuting in the right of their [404] testator or intestate, can apply only to cases where it is aeees. gary for them to prosecute in their representative character. must, therefore, receive the same construction as the En-gUsh statute, (23 Hen. VIII. c. 15.) although that contains no such express exception. We are, accordingly, of opinion, that the defendant is entitled to recover costs against the plaintiffs.