The recovery of costs is regulated by statute entirely. No costs are recoverable at common law. (State v. Abrams, 4 Blk'd, 441.)
There is no statute in the State authorizing a judgment de bonis propriis, against an administrator. The appellant, in his brief, relies upon the 494th section of the Practice Act, but if that section amounts to anything, it only provides that the prevailing party shall recover costs; that is admitted to be the law by the respondent, but the question in this case is, against whom shall the prevailing party recover--against the executor or administrator, to be levied de bonis propriis, or de bonis testatoris .
Nor does section 144 (page 397, Compiled Laws,) throw any light upon the question. That isa statute which provides for the " settlement of the estates of deceased persons in the Probate Court," and provides in effect, that in settlements in that Court, the administrator shall be chargable with such costs, unless it appears that the suit or defense was reasonable.
Before a Court, in which a party is litigating in a representative capacity, will render judgment de bonis propriis against such party, it should appear that such party has knowingly pleaded a false plea, or misconducted himself in the suit. (Weathers v. Newman, note, 1 Blackford, 233; Evans v. Adams, 4 Blackford, 54; King v. Anthony, 2 Blackford, 132.)
If this suit was brought by the respondent concerning transactions which happened in the lifetime of his intestate, and the administrator fail in the suit, he is not personally liable for costs. (Ketchum v. Ketchum, 4 Cowen Reports, page 89, and cases there cited.)
JUDGES: The opinion of the Court was delivered by Mr. Justice Terry. Mr. Chief Justice Murray concurred.
OPINION
TERRY, Judge
Respondent, as administrator of Henry Nail, instituted an action against appellant, in the District Court for Santa Clara County. On motion of plaintiff a nonsuit was entered, and judgment rendered in favor of defendant for costs. Afterwards, on motion of plaintiff, said judgment was amended by adding, that the judgment should be made out of the estate of the said Henry Nail, in the hands of said administrator. From this order defendant appeals.
The one hundred and forty-fourth section of the Act to regulate settlement of estates provides, that " when a judgment is given against an executor or administrator, the executor or administrator shall be individually liable for the costs; but they shall be allowed him in his administration accounts, unless it shall appear that the suit or proceeding in which the costs were taxed, shall have been prosecuted or resisted without just cause."
This provision was, we think, wisely adopted by the Legislature, for the purpose of preventing executors or administrators from wasting the property of estates in speculative or unnecessary litigation, by making them, in every case, individually responsible for the costs recovered against them, and permitting them to recover from the estate only such costs as shall appear to have been incurred in the bona fide discharge of their trust.
The order amending the judgment is reversed with costs.