Crane v. Hopkins

6 Ind. 44

Opinion

Stuart, J.

The only error assigned is that the decree is for costs de bonis propriis.

In return to a certiorari, an amended transcript is filed, by which it appears that the costs are to be levied of the goods and chattels which were of A. B., deceased, in the hands of the executors to be administered, if they have so much in their hands; otherwise to be levied de bonis propriis.

The judgment as it originally stood against the executors individually for costs, in the first instance, is error. 1 Saund. 335, note 10. As shown in the amended transcript, it conforms to the general rule as to costs against executors

(1). Harrison v. Warner, 1 Blackf. 385.

As the executors were not in fault, Hopkins, who obtained the erroneous decree, should pay the costs in this Court (2).

Per Curiam.

The decree is affirmed, at the costs of the appellee.

“Whenever the action against an executor or administrator can only be supported against him in that character, and he pleads any plea which admits that he has acted as such (except a release to himself) the judgment against him must he that the plaintiff do recover the debt and costs, to bo levied out of tho assets of the testator, if the defendant have so much, but if not, then the costs out of the defendant’s own goods: otherwise the judgment will be erroneous. Where ho pleads a release to himself, and it is found against him, the judgment is that tho plaintiff do recover both the debt and costs, in the first place de bonis testatoris, si, &c., and si non, &c., de bonis propriis.” 2 Williams on Ex’rs, 1409.

As to the rule in relation to costs where the record of the inferior Court is amended after error brought, see Bac. Ab., tit. Amendment and Jeofails (G-).