1. Administrators not liable for costs incurred in a suit brought by their intestate, and prosecuted by them after his death. Where executors or administrators sue in auter droit, they are not liable for costs de bonis propriis; they are liable where they sue in their own right, although they name themselves executors or administrators.
2. Where they sue in auter droit and fail, having no assets, costs are lost, unless they give bond and security for the costs, and then the security is liable.
From Halifax.
LOCKE, J., delivered the opinion of the Court.
The rule with regard to costs in England seems to be accurately laid down in 2 Bac. Ab., 446, and in the cases there referred to. Executors and administrators, when plaintiffs, pay no costs, for they sue in auter droit, and are but trustees for the creditors; they are not presumed to be sufficiently cognizant of the personal contracts of those whom they represent, and are therefore not within the statutes or acts of Parliament relative to costs. Wherever they sue in auter droit, they pay no costs; but if they bring suit in their own right, they shall pay costs, though they (103) name themselves executors or administrators; for this is but surplusage. Elwis v. Mocato, Salk., 314. To apply this rule to the present case, it would seem clearly to result that the administrator is not liable to pay, de bonis propriis, the costs incurred during the time of his intestate being a party or during his own time. But the Court think he is liable and ought to pay both out of the assets in his hands, if any such remain; for all the costs incurred during the pendency of the suit became a debt for which the estate of the intestate ought to be responsible.
In cases, therefore, where administrators sue in auter droit and fail, having no assets of the deceased wherewith the costs can be discharged, the Court are of opinion that the costs are lost, as there is no person properly liable to pay them, unless such administrators should give bond and security for payment of costs, and then such security is liable, on the principle of the case determined by this Court at this term, Hostler v. Smith, post, 103.