38 N.H. 100 | N.H. | 1859
The only statutory provision of this State which recognizes any personal liability of an executor or administrator for costs in a suit founded upon a cause of action in favor of or against the testator or intestate, is contained in sec. 13, ch. 161 of the Revised Statutes, which provides that upon return of “no goods,” or “waste,”
In Pillsbury v. Hubbard, 10 N. H. 233, it is said by Parker, C. J., in reference to this clause of the act, that cases where the administrator has himself commenced an action, and, after judgment against him, has refused to expose the goods of the intestate, are certainly within the reason of the clause, and may, perhaps, well be held to be within its provisions. But it does not follow, if the case is within the statute, that an execution against the administrator, of his own goods, is to be awarded upon scire facias, as a matter of course. It can be awarded only when, upon the scire facias, the administrator fails to appear; or when, appearing, he fails to show cause why it should not be awarded. This was the express provision of the act of 1822, and although it is omitted from the Revised Statutes, the omission does not effect a change of the law in this respect. By the statute, the execution de bonis propriis is to be awarded upon scire facias to the administrator. This implies that he is to be heard. To what end, it may be asked, unless it be that he may show cause against the issuing of such execution. If the judgment in the first instance was properly entered against the goods of the intestate in the hands of his administrator, upon the return of “ no goods” on the execution, presumptively the administrator, when called upon to expose the goods of his intestate to be levied upon, refused to do so, because he had wasted the estate of which, according to the judgment, execution was to be had. The question upon the scire
There are, undoubtedly, cases where the administrator is to be charged personally with costs, independent of any statutory provisions to that effect. Instances of this are to be found in the eases collected and commented upon in Pillsbury v. Hubbard, before cited, and in Keniston v. Little, 30 N. H. (10 Fost.) 318, also cited by the counsel for the plaintiff. But none of these cases afford authority for the award of the execution upon this proceeding. They are cases where the judgment for costs is, in principle, like an interlocutory order entered against the administrator, because of some default or neglect; as in Hawes v. Saunders, 3 Burr. 1584, where judgment of non pros. was signed against him for not filing his declaration within time; Eames v. Mocato, 1 Salk. 314, for not going to trial agreeably to his notice; Higgs v. Wary, 6 T. R. 654, for not joining in demurrer to his declaration for a defective profert; or they are cases where, according to the English practice, the administrator is to be charged for pleading falsely, by a judgment against him in the alternative, that the costs be levied of the goods of the intestate, if the defendant hath so much in his hands to be administered, and if not, of his own goods; as in Ewing v. Peters, 3 T. R. 685, and Ballard v. Spencer, 7 T. R. 358. We have no practice here charging an administrator with costs on account of false pleading merely, nor any which warrants an alternative judgment. Pillsbury v. Hubbard. Or they are cases where the administrator counts upon a cause of action, which, though accruing to the intestate, may be alleged to have arisen after his decease, and the allegation that the plaintiff is administrator or executor is regarded merely as descriptio persones ; as
The ruling of the court below, in awarding the execution, was incorrect. The order must be vacated, and judgment rendered for the defendant, for his costs upon the scire facias.