Hogeboom v. Clark

Headnote

On a. scire fa- ters to revive whereT-sfi'Vjs joined on a pica and the VS' tiffs are non-suited at the tnai they must páyeoste.

SCIRE FACIAS to revive a judgment in favor of the tes-tutor against the defendant, who pleaded payment, and on the trial of the issue, at the last Columbia circuit, when the jury returned to the bar with their verdict, the plaintiffs, being ca^c<f ^id not appear, and were nonsuited,

It appeared that.the suit was not brought for the benefit of plaintiffs or of the testator’s estate, but for the assignee of ^ the .judgment, which was assigned soon after it was recovered.

now moved that the plaintiffs pay the costs of the nonsuit., or that judgment be entered against them for the same; or for a rule that the assignee pay the costs. He contended, that the 9th section of the act concerning costs, contains no saving or exception in favor of executors and administrators. Its language is general; “ that in all suits, upon any writ of scire facias, and suits upon prohibition, the plaintiff obtaining judgment or any award of execution, after plea pleaded or demurrer joined therein, shall likewise recover his costs of suit; and if the plaintiff shall become nonsuit, or suffer a discontinuance, or a verdict shall pass against him, the defendant shall recover his costs,” &c. In the case of the administrators *of Kellogg v. Wilcocks, ( 2 Johns. Rep. 377 .) the court said, that as the 12th section of the act which gives costs against a plaintiff on demurrer, contained no exception in favor of executors and administrators, they must pay costs. The exception in the second section of the act cannot be extended to this case. It speaks of suits to be prosecuted, where a plaintiff becomes nonsuited after appearance of the defendant or a verdict against him. It has no reference to proceedings to revive a judgment already obtained.

Again ; this suit is not brought for the benefit of the plaintiffs or of the testator’s estate. The executors are nominal plaintiffs and trustees for the assignee of the judgment.

The 9th section of our statute is an exact transcript from the 8 Wm. III. ch. 11. s. 3. except that, the English statute specifies the nature of the execution to be issued. It is expressly laid down by Hullock, in his treatise on Costs, (p. 302, 303.) that in scire facias by executors or administrators, and a judgment against them after plea pleaded, they do not pay costs,^[1]