SOUTHGATE and an Executors of Clark, v.
v. CROWLEY

and an

ATCHERLEY, Serjt., had obtained a rule nisi calling on defendants to shew cause why the plaintiffs should not be exempted from the payment of costs to defendants under Stat. 3 & 4 Wm. 4, c. 42, sec. 31 (a), under the following circumstances. The action was brought by the plaintiffs, as executors of Clark, for the hire of certain waggons and carts in the lifetime of the testator. It appeared that Clark carried on an extensive business as a carman, and had kept a running account with the defendants for some years, but no balance had been struck. Upon the death of the testator, the executors made out a demand from his books to the amount of 9177., which the defendants refused to pay, saying, that they owed no more than 5357., as they had made an agreement with the testator in his lifetime, but refused to give any farther particulars of the grounds of their defence. The plaintiffs then brought this action, and the defendants paid 5357. into Court. At the trial, before Tindal, C. J., it appeared that the testator's account books contained entries of the work done from day to day, but no sums were carried out, and amongst other entries were items for the hire of a cart and two horses. At the trial a witness was called by the defendants, who proved a contract made with the testator to charge for the said cart and two horses, at the same rate as he charged for a cart and one horse; and evidence was also given that some of the other charges were two high, but there was no dispute as to the quantity of work done. The jury found a verdict for the defendants.

Wilde, Serjt., now shewed cause, but was stopped by the Court, and plaintiffs' counsel were called upon to support the rule.

Atcherley, Serjt., and G. Hayes, submitted that in this case the Court would exercise its power to deprive the defendants of their costs. Here the testator's books contained a prima facie entry of the work which had been performed, and the plaintiffs, as executors, had no knowledge of the contract which had been made by the testator in his life time. The reason why executors were not liable to pay costs under the former Statutes, is, that they were not supposed to be cognizant of their testator's affairs; it is so stated in Hayworth v. David (b), and Bull v. Palmer (c).—[Tindal, C. J.-I doubt if that is the true ground of their not being liable.]—If the contract had not been proved at the trial, the plaintiffs would have obtained a verdict. Here the executors owe a duty which they are bound to perform for the benefit of the estate, and are liable to a devastavit if they do not make the most of the testator's effects. Have not the executors properly performed their duty upon this occasion? They ought not to be made the insurers of the event of an action; it may be that no effects are now in their hands, and that they are liable to have these costs levied de bonis propriis.-[Park, J.-Suppose the testator had brought an action against the defendants, and failed, he must have paid costs. That is true, but he would be justly called upon to pay, for he had knowledge of the contract, and that is the distinction between costs paid by executors, and costs paid by other persons. No one will act as an executor if he is to be compelled to enforce a demand at his own risk. Here the plaintiffs displayed neither impatience or haste in enforcing their claim; application was made to the defendants, but they refused to pay, and gave no reason for their refusal. The defendants ought to have given the plaintiffs intimation of the terms of the contract upon which they relied. In Wilkinson v. Edwards (d), the plaintiff had proceeded hastily in the action. If the contract had been stated to the plaintiffs, and they had notwithstanding persisted in bringing the action, then they might be called upon to pay the

costs.

TINDAL, C. J.-This motion comes before us upon the stat. 3 & 4 Wm. 4, c. 42, the 31st section of which enacts that "In every action brought by any executor or administrator in right of the testator or intestate, such executor or administrator shall, unless the Court in which such action is brought shall otherwise order, be liable to pay costs to the defendant in case of being nonsuited, or a verdict passing against the plaintiff, and in all other cases in which he would be liable if such plaintiff were suing in his own right, upon a cause of action accruing to himself, and the defendant shall have judgment for such costs, and they shall be recovered in like manner." It appears, therefore, that the rule now is that the executor is in general liable to pay costs, and it is the excepted case that in some instances he shall not be liable, and like all other excepted cases, this must be strictly watched, or we shall not follow up and give effect to the intention of the legislature. Before this Statute, if an executor brought an action and failed, he was not liable to pay costs to the defendant; and I have always supposed that this depended upon the peculiar words in the Stats. 23 Hen. 8, c. 15, and 4 Jac. 1, c. 3, and this is no new opinion, for I find that Lord Eldon in Tattersall v. Grote (e), says,

(b) Cro. James, 229.
(c) Sir T. Jones, 47.

(d) i Bing. N. R. 303.

(e) 2 Bos. & P. 255.

"the sound principle on which the exemption of the executor and administrators rests, is not the degree of ignorance under which they may be supposed to lie, but that the exemption founds itself on the description of the actions. contained in the statute in which costs are to be paid." But it is unnecessary to determine this point very accurately; the only question being whether the Court will exercise their discretionary power under the circumstances of the present case. If the executors had been deceived, not simply by a want of clearness in the accounts of the testator, but by any misconduct on the part of the defendants, I am one of the first to say that in such a case the Court would relieve the executors from the payment of costs. But I cannot see any misconduct which can be imputed to the defendants in the present case. The action is brought on a claim for the annual hire of horses and carts, and a large portion of the demand is for job work performed by the testator. Now the plaintiffs must have supposed that there was some original contract entered into, between the testator and the defendants, and if they made inquiries and found that there was no contract, they must have known that they were bound to produce evidence to support a count on a quantum meruit. But at the trial they only produced one witness to support their charges for the work done, whilst the defendants called several persons who stated that the charges were unreasonable. I do not blame the plaintiffs for this, nor do I say that they had not a bona fide belief that they had a good cause of action for the whole sum claimed. The question is, was there any misconduct on the part of the defendants? It is said that there was a contract made between them and the testator, which they kept back from the knowledge of the plaintiffs. I should be sorry to say that a defendant is in all cases bound to put a plaintiff in possession of the exact grounds upon which he intends to found his defence to an action. If they had kept a receipt for a part of the sum demanded, in their pockets, and then produced it for the first time at the trial, it would have been a very different case from the present, but I know of no principle which compels a defendant to inform the plaintiff's attorney of the exact defence which he intends to set up. Under these circumstances the executors stand in the situation that other plaintiffs are in, and they must pay the defendants their costs.

PARK, J.-These are applications which are purely in the discretion of the Court, and every case must vary in its circumstances. The question is not whether the plaintiffs here acted bona fide in bringing their action, although I should not be disposed to say that, in this case, they have used due diligence in obtaining such information as they might have obtained. I do not think defendants are bound in every case to produce their evidence for the inspection of the plaintiff. Numerous applications are made to me at chambers for the purpose of obtaining this advantage, but I constantly refuse to allow it. I am of opinion that this rule should be discharged.

VAUGHAN, J.-I have listened with attention to the facts of this case, and as I have the misfortune to differ with the rest of the Court, it is with regret that I express any opinion. This question arises upon the construction of a Statute which makes a great change in the situation of executors who are plaintiffs in an action. I think my Lord has correctly put the grounds upon which the exception to the general rule ought to be allowed. I am now speak

Com. Pleas
SOUTHGATE

V.

CROWLEY.

SOUTHGATE

v.

CROWLEY.

Com. Pleas. ing from recollection, but I am sure I have read in very many cases that the reason why executors were formerly held released from the payment of costs was, that they were not supposed to be cognizant of their testators' affairs: although I am ready to admit that the privileges which they formerly enjoyed were very grossly abused; and I think that the legislature most wisely interfered to prevent such proceedings. But at the same time, it was not the intention of the Statute to compel executors to pay costs in all cases, and therefore a discretion is placed in the hands of the judges. The question then is, was it the duty of these executors, using due care and discretion, to bring this action? If it was, then they ought to be protected; and I think this was a case which was properly presented to a jury for their consideration. It is said that the defendants were not bound to disclose the contract which they had made with the testator, but it seems to me that the plaintiffs had to go into Court with them upon very unfair terms. I do not say the defendants were bound to produce the contract before the trial, but then they ought not to complain if this Court, exercising its discretion, should refuse to compel the executors to pay the costs of an action, the prima facie evidence to support which, was upon the face of the testator's books of account. My own opinion is, that the intention of the Statute is, that the executor shall not be called upon to pay costs, if the Court are satisfied that it was his duty to prosecute the action.

Jan. 13th.

Where an execution creditor appears under

BOSANQUET, J.-Whatever may be the grounds upon which an executor was formerly exonerated from the payment of costs, I am of opinion that an executor is now placed in exactly the same situation as any other plaintiff, with regard to the payment of costs. It is not sufficient for the executor to prove that the action was brought bona fide, but he must also shew some special ground for exemption, for it is to be observed that by the language of the Statute he is to be generally liable, and the exemption is the excepted case. In the present case an application was made to the defendants for 9177. which they refused to pay, but at the same time they stated precisely the amount which they admitted to be due; and it turns out by the verdict of the jury that the defendants are right in resisting the larger claim. I do not think the defendants acted improperly in refusing to give the particulars of the contract to the plaintiffs; it appears that they said they relied on an agreement made with the testator, but refused to give the particulars of that agreement. Under these circumstances I see no reason why these, like any other defendants who have obtained a verdict, should not be entitled to receive their costs from the plaintiffs

DABBS v. HUMPHREY.

Rule discharged.

THIS was an application arising from certain proceedings which had been taken under the Interpleader Act, 1 & 2 Wm. 4, c. 58, s. 6. The plaintiff theInterpleader Dabbs had issued an execution against the goods of defendant, and on the 25th of Feb., the sheriff of Surrey seized some stock in trade, believing it to be the property of the defendant. Two persons, named Firminger and Aylmore, gave the sheriff notice that the goods seized were their property, and

Act, and con

septs with the claimant that the sheriff shall sell the goods,

and that their

produce shall abide the event of an issue to be tried, but subsequently abandons his claim, the Court will compel him to pay the sheriff the costs of selling the goods.

the sheriff on the 3d of May applied to the Court for protection under sec. 6 of Stat. 1 & 2 Wm. 4, c. 58, and by the order of the judge to whom the application was made, two issues were directed to be tried, wherein Dabbs should be plaintiff, and Firminger and Aylmore defendants, and by consent of all parties, it was agreed that the sheriff should sell the goods, and pay the proceeds into Court to await the trial of the issues. On the 23d of May following, the sheriff sold the goods for the sum of 1381. 88. The plaintiff finding on inquiry that he could not sustain his right to take the goods under the execution, abandoned his claim to the proceeds of the sale, and the sheriff being called upon by summons, before a judge, to pay over the proceeds of the sale, he claimed the costs of keeping possession of the goods, and also the costs of the sale. The learned judge ordered the sheriff to pay 1277. to Firminger and Aylmore, and to pay the remaining 117. 88. into Court (which was the amount of the costs of the sale incurred by the sheriff), reserving leave to the sheriff to apply to the Court for the costs of the sale, and of keeping the possession. W. Clarkson having obtained a rule nisi accordingly during the last Term.

Bompas, Serjt., now shewed cause on behalf of the claimants. It is submitted, that as the property of the claimants has been improperly taken by the sheriff, they are entitled to receive its full value. The 11. 88. now in Court, clearly belongs to the parties whose goods were sold. If the Interpleader Act had not enabled the sheriff to come to the Court for protection, he would have been liable to an action of trover, and then the claimants would have reccvered the full value of the goods. As against these parties the acts of the sheriff were all wrongful.

Barstow, for the execution creditor.-It does not appear that the execution creditor insisted that the sheriff should take these goods in execution; he merely delivered the writ to the sheriff, and then the sheriff took the goods of another person in execution. It has been decided that the sheriff is not in general entitled to costs, Bishop v. Hinxman (a).

W. Clarkson, for the sheriff-The execution creditor was aware of the claim set up to the goods, and that the sheriff intended to apply to the court for relief. The sheriff does not make any claim to poundage, but he is clearly entitled to the cost of the sale and of keeping possession, for after the agreement which was come to, that the goods should be sold, he was the agent of the execution creditor.—[Tindal, C. J.—It is clear he was acting as agent from the 3d of May, until the sale of the goods, but can it be said that he was an agent before that time ?]-Perhaps it cannot be contended that It may be admitted, that in general, the sheriff is not entitled to his costs; but that rule is not without exceptions. In Bryant v. Ikey (b), the Court allowed the sheriff his costs against the execution creditor.

he was.

TINDAL, C. J.—I am of opinion that the justice of this case will be answered by making this rule absolute, so far as it relates to the costs of selling the goods, and of keeping possession from the 3d of May until the day of sale, and to the costs of this application; and I think that these costs ought to come out of the pocket of the execution creditor. It appears that (b) 1 Dow. P. C. 428.

(a) 2 Dow. P. C. 166.