Hutchinson v. Gamble , 12 Ala. 36 ( 1847 )

COLLIER, C. J.

In Chandler, et al. v. Shehan, 7 Ala. Rep. 251, it was said that the test to determine whether a judgment against an administrator should be de bonis pro-priis, aut intestatis, is whether or not the money for which the action is brought, would if recovered be assets of the estate ; though it was conceded that it had been held in England, that a plaintiff suing as an executor or administrator would be liable de bonis propriis, if the action could have been maintained in his own name. And in Stewart, et al. v. Hood, et al. 10 Ala. Rep. 600, it was held, that in this State when an administrator de bonis non sues upon a note given to the administrator in chief, in that character, for goods of the estate, he is not responsible de bonis propriis for costs, as he necessarily sues in his representative character. The court said it would seem that whenever an administrator may properly sue in his representative character, the costs in all cases should follow the judgment; and ag that is, that the defendant be discharged of the suit of the administrator, the costs are recovered of the latter in his representative character.

In the case at bar the plaintiff, if he had been in possession of the property after the grant of administration, might perhaps have sued in his own name, yet it was not indispensable that he should have thus declared. Whatever the plaintiff would have recovered had his action been successfully prosecuted, would have been assets of the estate he represented ; and being unsuccessful according to the cases cited, that estate is chargeable with the costs. The judgment is therefore reversed, and the proper judgment here rendered for the costs of the circuit court de bonis intestatis.