Penrose v. Pawling

The opinion of the Court was delivered by Sergeant, J. Pawling, as administrator, sued Penrose, as executor, in assumpsit; and the cause being referred to arbitrators, an award was rendered in favour of the plaintiff for $173.97. The defendant, Penrose, appealed, entered into recognisance and paid the costs of the appeal. On trial the plaintiff Pawling became nonsuit; and the question is, whether the defendant, Penrose, is entitled to a return of these costs. This question is raised by a case stated, in which Penrose is plaintiff and Pawling defendant. We are of opinion that Penrose is entitled to recover. Costs are given to the defendant by statute 23 Hen. 8, c. 15, which enacts that in actions of debt, case, &c., if the plaintiff after appearance of the defendant be nonsuit, the defendant shall have judgment to recover his costs, &c.; and this is our daily practice. It makes no difference that the plaintiff sues as administrator, for it is decided in Muntorf v. Muntorf (2 Rawle 180), that in Pennsylvania an executor or administrator is bound to pay costs to the defendant in case of nonsuit or of a verdict for the defendant, as well when he necessarily sues in his representative character as when the cause of action arises after the death of the testator; and the distinction which prevails in England in this respect has not obtained here. The cases of Pratt v. Naglee (6 Serg. & Rawle 299); Landis v. Shaeffer (4 Ibid. 199); and Bellas v. Oyster (7 Watts 341), do not resemble the present, for there, on the defendants’ appeal, the plaintiff recovered, though it was a smaller sum than that which had been awarded to him by arbitrators; but here he fails entirely, and judgment of nonsuit is entered against him. In Gallatin v. Cornman (1 P. R. 115), it was held that where the defendant appealed, and on trial obtained a verdict and judgment in his favour, it was a case not provided for by the Act of 20th March 1810, and the costs should follow the final judgment, [381] which was for the defendant. One portion of the costs in that case were those paid on the appeal. This case seems to be similar in principle to the present. Judgment reversed, and judgment entered for the plaintiff (Penrose) according to the case stated.