Charleston THOMAS FRINK, & Co. ads. WILLIAM LUYTEN, Admi District,1798. nistrator of HUNT, deceased. Where executors and administrators sue in right of their testators or intestates, MOTION to set aside a judgment, and ca. sa. against an administrator, for costs. The defendants in this case, were sued by the adminisand are non- trator of Hunt, for the balance of an account which was in their suits, apparently due to the estate; but owing to a discount which was brought in against this demand, the plaintiff did suited or fail they are not liable for costs. But where not think proper to proceed in the action, and suffered a they are de- nonsuit. fendants, they are liable, and judgment shall be de bo The defendants' attorney entered up a judgment on this nis testatoris. suit, against the administrator of Hunt, de bonis propriis, tor sue for a and took a ca. sa against him, on which he was taken ; If an execu trespass or ter the death onversion af this, therefore, was a motion to set aside the judgment as irregular, and to have Luyten discharged from the custody of the sheriff on the ca. sa. of the testa tor, where he need not name himself execu tor, or for a cause of action of which sant, in such Mr. Fraser, in support of the motion, laid it down as a he is conu general rule of law, that executors and administrators cases, he shall where they are plaintiffs, pay no costs; because they come in autre droit, and not in their own right; besides, they are be liable if he fail in his action, or beCome nonsuit. 1 Bac. Abr. 518. bound by oath to recover the rights and credits of the testator or intestate, it would therefore be most unreasonable and unjust, to make them liable for costs. Another objection in the present case, he said, was, that the suit was in the name of the administrator in right of the intestate, and upon this record he had entered a judgment against him de bonis propriis, which was a repugnancy, the judgment not being consistent with the record. Mr. Bailey, for defendants, relied on 3 Burr. 1451. where it is said, an executor shall not have leave to discontinue, unless on payment of costs, where he knowingly ads. Luyten. brings a wrong action. Also on 3 Burr. 1584. where it is Frink & Co. said an executor shall not pay costs on a non pros. but he shall if he does not go on to trial agreeable to notice. 31 H. VI. 15. 4 Jac. I. c. S. and 9 W. & M. c.11. The Court was of opinion, that the judgment de bonis propriis in this case was irregular, and that the administrator should be discharged from the ca. sa. with costs. They laid it down, that an executor defendant pays costs in all cases, and the judgment is de bonis testatoris; so where there is judgment for him in cases where he is defendant, he shall have costs. 1 Bac. 517. Bro. Executor, 164. Plowd. 183. So likewise in equity, costs are usually awarded out of assets. Eq. Cas. Abr. 125. But an executor or administrator is not within the meaning of the statutes, which give costs to a defendant after verdict or nonsuit, when they are plaintiffs; in all those cases, where they are plaintiffs, they pay no costs, because (as has been said before) they are in autre droit, and are but trustees for creditors, and are not presumed to be sufficiently conusant of the personal contracts of those they represent. Whenever, therefore, there is an apparent right, it is their duty, and they are bound to pursue it, though it turn out eventually that there is a good defence against the action; as in the present case, it turned out that there was a good discount, which the administrator might have known nothing about. If, however, an executor or administrator bring an action in their own right, as for a conversion or trespass in their own 1 Bac. Abr time, of which they are conusant, they shall pay costs; or if they bring assumpsit for money received after the death of the testator, and become nonsuit, they shall pay costs; for the law gives this privilege to executors, of not paying costs, only where the cause of action accrued in the testator's lifetime, and there only, because they are not supposed to be conusant or privy to the acts of the testator. 518. 11 Mod. 135. So also in cases where an executor brings an action where he need not name himself executor, and it goes against him, 11 Mod. 174. he must pay costs. Frink & Co. ads. Luyten. Salk. 314. Salk. The goods of the testator are assets in the hands of an executor; he has a qualified property in them; he is not obliged to name himself executor in an action of trespass or trover for them, if the trespass or conversion is since the testator's death; therefore it is, in case of nonsuit, that he is liable for costs. So also, if an executor will not go on to 3 Burr. 1584. trial, agreeable to notice, the defendant shall not be needlessly harassed; he shall pay costs in such cases. 314. Mod. Cas. 93. These, the court observed, were in general the cases where executors and administrators are exempt or liable for costs; but there might be other cases, either of liability or exemption, which depend upon peculiar circumstances, not taken notice of above, as in the case quoted by defendants' counsel from 3 Burr. 1451. which was a case where the executor brought an action to harass the defendant, knowing it to be a wrong action; there he was made liable for costs. But in the case under consideration, they saw nothing oppressive in it, or which took it out of the general rule of law, in exempting executors and administrators from costs, who endeavour to recover the bona fide debts and rights of their testators or intestates. Rule made absolute for setting aside the judgment, and discharging the administrator from the arrest, with costs. Present, BURKE, GRIMKE and BAY. Sundry Creditors of Messrs. THAYER & STURGIS against Charleston The SHERIFF OF CHARLESTON DISTRICT. UPON a rule on the sheriff to bring money into court, to be paid over to the plaintiffs, on their executions, &c. The cause shewn by the sheriff in this case was, that he had sold a house and lot on East Bay-street, the property of the defendants Thayer and Sturgis, which had been bought in by John Duncan, at and for the sum of 1,800. sterling, but that he had refused to pay the purchase-money unless he had an abatement of 400% sterling, for the dower which the wives of the defendants might claim, in case of their surviving their husbands; and therefore prayed the aid and advice of the court, before he made his return, or proceeded to resell the house and lot, at the risk of the purchaser. On the part of the creditors it was urged, that this dower, which was made the pretext of non-payment of the money by the purchaser, was a mere possibility, which depended upon a contingency which might or might not happen. That it was very uncertain whether these ladies would survive their husbands or not; and that even if they did, it might be at a very late period of their lives, when their right of dower would be worth very little, if any thing. That, at all events, there was no rule at the common law for ascertaining uncertain and contingent damages; and the dower act only related to widows who had lost their husbands, and whose rights had actually accrued, and which did not depend on possibilities. It was further urged, that this was a case of considerable importance to the public, and merited the serious consideration of the court. This sale was made by operation of law, in consequence of a judgment obtained in a court of justice, in which the plaintiffs in the different suits were not bound to warrant or in District,1798. Creditors of V. Sheriff of Charleston. demnify the purchaser against any such claims; it differed widely from private sales, where the seller was bound to warrant and defend the property free from all incumbrances, or where the payment of the consideration money raised an implied covenant in law. That the right of property of the defendants in the action was the thing seized and sold by the sheriff, more or less; whatever that might be, the purchaser had a right to by virtue of this sale, and the sheriff could convey no more. It was the duty of the purchaser to examine into the nature of the estate, and the quality of the thing sold, before he made his purchase. Caveat emptor was the proper rule in such a case, and unless that was laid down as the true rule in sheriffs' sales, it would render them uncertain in all parts of the country, and constant shifts and pretences would be conjured up, by purchasers, in all cases. where after purchase they did not like their bargains, more especially where the wives of defendants were living at the time of such sale. On the part of the purchaser, who did not wish to give up his bargain, it was said, a case had been determined in this. court in 1793, (Blake's case,) where a contingent claim of dower had been sent to a jury, to determine what deduction out of the purchase-money ought to be made for her possible claim, which the jury allowed, and which, it was urged, ought to make a precedent in every case. That although the purchaser had demanded an abatement of 400/. in this case out of the purchase-money, yet he was willing to submit it to a jury, as in Mrs. Blake's case, to ascertain a reasonable deduction in this case. Per Curiam. There is no rule at law for ascertaining possible damages; the principle is absolutely unknown in the history of our jurisprudence. A court of equity will in some cases, where a subsequent right is certain or probable, order indemnity to be given, and make that a condition of their decretal orders; but a court of law possesses no such |