Administrators of Kellogg v. Wilcocks

2 Johns. 377

Opinion

Per Curiam.

Executors and administrators are excepted out of the second section of the act, (Laws of N. Y. vol. 1. 528.) which gives costs against a plaintiff when nonsuited, or on a Verdict against him. But the 12th section of the same act, which gives costs against a plaintiff on a judgment-on demurrer, against him contains no such exception in favour of executors and administrators. — * This section of the act was borrowed from the second section of the statute of the 8th and Sth William III. 'c. 11. and by the 4th section'of that statute, executors and, administrators are excepted. We are, therefore, bound by the positive words of our act, and cannot adopt the English decisions,

(a) which appear to exempt executors' and administrators in like cases. The plaintiffs must pay1 the costs!

Motion granted.

.) Tattersall v. Groote, 2 Bos. & Puller, 253. 6 Term, 654. The., words of the 5th section of the Oth and 9th William. III. c. 11. are “Provided, that nothing in the act shall be construed to alter the laws in-being, as to executors and administrators, in such cases where they.are not at present liable to the- pa5ment of costs of suit.” This- hard/y amounts to an exception, unless where prior acts created one. By the first section of c. 15. of the 23 Henry VIII. which gives costs against a plaintiffin case he is nonsuited, or a verdict passes against him, executors and administrators are not excepted, and yet the courts in En-glandhave uniformly decided, that executors and administrators were not liable to costs, under the act of 23 Henry VIII. when they necessarily sue in their representative character, and cannot bring their action in their own right. (Tidd, 893, 894.) It was on the same priu_. Ciple, and not on the ground of any exception in the 5th sect, of the act of 8 and 9 William III. that the court, in Tatlersall v. Groote decided, that executors and administrators, plaintiffs, are not liable to pay costs on a.judgment against them, on demurrer, when they necessarily sue in their representative character.