Mitchell v. Matthews

Headnote

In action of trover brought by the public administrator of New-York, on information and belief, for an alleged conversion by defendant, in the lifetime of the intestate and also after his death, cf certain goods and chattels of the inteltate,

the prosecution of the cause having been abandoned by plaintiff in consequence of supposed insolvency of defendant, and judgment as in case of non- • suit having been granted in favor of the defendant, it was held, that the suit was not necessarily prosecuted in the right of the intestate, and that the plaintiff was personally liable for costs, if there was no .property of the intestate.

Motion by defendant for leave to enter up judgment for Ms costs against the plaintiff, to be levied of the assets of the plaintiff’s intestate, if any, and if not of the plaintiff’s own property.

This was action of trover commenced by capias for an alleged conversion by the defendant in the lifetime of the intestate, and also after his death, of certain goods and chattels. Defendant being non-resident was held to bail. On motion to discharge defendant on common bail, it was shown that plaintiff commenced the suit on information and belief of the facts constituting the cause of action. The defendant was on that ground discharged on common bail. The plaintiff then proposed to defendant’s attorney to discontinue the suit, each party to pay his own costs, which proposition was refused, defendant’s attorney claiming he was entitled to costs. Plaintiff’s attorney in answer alleged that an administrator was not liable for costs, in a suit brought in his official capacity. Plaintiff’s attorney stated that the estate was insolvent, and there was no means of paying costs or expenses from said estate. The defendant swore that he was not insolvent, but, on the" contrary," was possessed of considerable property over and above his debts. At February special term last, a motion was made by defendant for judgment as in case of nonsuit, which was granted.