26 Miss. 328 | Miss. | 1853
delivered the opinion of the court.
This is a motion to quash a writ of fieri facias, because it commands the sheriff to levy the costs of the goods and chattels of the administrator, and the question which is submitted for our determination is this: — In an action brought by an executor or administrator, in which judgment is rendered for the defendant, or in a case in this court against an executor or administrator where the adverse party is entitled to costs, is it proper that a judgment should be rendered against the executor or administrator de bonis propriis ?
By the common law, the judgment against an executor or administrator was “ to be levied of the goods and chattels of the deceased, if the defendant have so much; but if not, then the costs out of the defendant’s own goods.” 2 Willm. on Ex’rs, 125 (1st Am. edit.). But a material alteration was made by the 111th section of Hutch. Code, p. 670, which, after providing that executors and administrators may sue and be sued, enacts, that “ they shall be entitled to, or be answerable for costs in the same manner that the defendant would have been; and they shall be allowed for the same in their accounts, provided the court awarding costs against them shall certify that there were probable grounds for instituting, prosecuting,'or defending the action on which a judgment or decree shall have been rendered,” &c.
This portion of the statute does not appear to have been considered in the cases above referred to, but its provisions are
By these provisions, it wás obviously the intention of the legislature, in giving the right to executors, &c., to prosecute and defend suits, to guard against the abuse of the power, and to protect the estate against the effects of improvident litigation ; and certainly nothing could better promote this salutary object than the provision that executors and administrators should, in entering into litigation, take the peril of having the expense to fall upon themselves. This is a rule of justice and safety to estates, which* cannot work injury to faithful administrators.
We think it manifest, therefore, that the judgment in this case was properly rendered against the administrator for the costs to be levied cle bonis propriis; and the motion is overruled.