or false in fact, the bad or false pleading being his own act, he becomes liable to costs de bonis propriis; and this gives rise to an important practical consideration. In an ordinary action against a defendant not sued as executor or administrator, if he pleads one good defence to the action upon which he succeeds, but has put on the record other speculative pleas, on which he fails, he obtains the general costs, and has to pay the costs of the issues found against him, which, as they do not carry the general costs of the trial, are generally not very heavy; but if an executor, having a good defence under plene administravit, does not content himself with pleading that, but puts other defences on the record which are found against him (the plaintiff having confessed the plene administravit and taken judgment of assets quando), the defendant has not merely to pay costs of issues, but he has to pay the general costs of the cause, to be levied de bonis propriis if the assets are insufficient (a).

If, however, in such a case, the plaintiff, instead of taking judgment of assets quando upon the plea of plene administravit, traverses that plea, and that issue is found for the defendant, the defendant, notwithstanding the other issues are found for the plaintiff, is entitled to the postea and the general costs, the plaintiff being only entitled to the costs of the issues found for him (6). In one case the Court compared this state of facts to the ordinary case of trespass, where, upon not guilty pleaded, and also a justification, if the latter is found for the defendant, he is entitled to the general costs, and held, that in the case before them the defendant was also entitled to the postea and to his general costs (c).

If the plaintiff confesses the plea of plene administravit and takes judgment of assets quando, the defendant establishes a complete defence to the action, so far as he is sought to be charged personally, the judgment being, so to speak, against

(a) Marshall v. Willder, 9 B. & C. 655; Tidd, 9th edit. p. 980.

(b) Garnans v. Heskett, Tidd, 8th edit., 1016; Cockson v. Drinkwater, 3 Dougl. 239; Hogg v. Graham, 4

Taunt. 155; Ragg v. Wells, 8 Id. 129; Edwards v. Bethell, 1 B. & Ald. 254; Iggulden v. Terson, 2 Dowl, 277; 4 Tyr. 309, S. C.

(c) Hogg v. Graham, supra.

the estate; but if the plaintiff, instead of acting thus, takes issue upon the plea, and it is found against him, the defendant is entitled to judgment for his costs under the Statutes 23 Hen. VIII. c. 15, s. 1, and 4 Jac. I. c. 3 (a); but on a plea of plene administravit, confessed by the plaintiff, there being a judgment for the plaintiff of assets quando, and no nonsuit or verdict for the defendant, the above Statutes do not entitle the defendant to costs, and he is therefore not entitled to them.

In a case where an executor pleaded non assumpsit and plene administravit, on which the plaintiff took issue, and plene administravit præter certain specialty debts, on which latter plea the plaintiff took judgment of assets quando acciderint, and there was a verdict for the plaintiff on the plea of non assumpsit, and for the defendant on the issue of plene administravit, the Court held, that the plaintiff being at all events entitled to judgment of assets quando, and having been compelled by the defendant's pleading non assumpsit to go down to trial, was entitled to retain the postea, and to have the general costs of the trial, though the issue of plene administravit was found against him (b). The correctness of the judgment in this case seems very questionable. It is apprehended that the judgment of assets quando upon the plea of plene administravit præter became nugatory as soon as the truth of the plea of plene administravit was established. When the former plea is pleaded alone and confessed, it stands established that the defendant has some assets applicable to the debts having priority, and the plaintiff is therefore in a more favourable situation than if the defendant had no assets, because the defendant can never set up against him that the whole of the after-acquired assets were applicable to the payment of these debts; but if there is a plea of plene administravit also, and the truth of that is established, the plaintiff is no longer in a situation to say that the defendant had anything applicable to the debts having priority, and it seems to follow that the judgment of assets quando upon the plene administravit præter becomes nugatory and of no effect, that which is the foundation of it appearing

(a) Ante, pp. 7, 8.

(b) Hindsley v. Russell, 12 East, 232.

on the whole record to have no existence. In the case now under discussion the judgment of assets quando ought for these reasons to have had no bearing on the judgment, and if so, it is reduced to the ordinary case of an executor pleading non assumpsit and plene administravit, and on issues joined on both pleas, the first found for plaintiff, the second for defendant; in such a case the defendant is entitled, as has been already shown, to the postea and to the general costs. The reason given by the Court seems unsatisfactory, viz. that the plaintiff was compelled to go to trial by the defendant pleading non assumpsit; this would have been a sufficient reason if the plaintiff had not taken issue on the plene administravit, but had taken judgment of assets quando; but what ground was there for assuming that if the defendant had not pleaded non assumpsit, the plaintiff would not have gone to trial on the plea of plene administravit? A judgment of assets quando upon that plea did not put him in the same situation as a judgment of assets quando on the plea of plene administravit præter; and inasmuch as there was an object to be gained in going to trial upon the plea of plene administravit, there seems no legal ground for assuming that the plaintiff's course would have been different if non assumpsit had not been pleaded. If these observations be correct, it would seem that the defendant in the case in question ought to have been held entitled to the postea and the general costs, and the plaintiff only to the costs of the issue on non assumpsit, under the Statute 4th of Anne, c. 16.

In support of this view it may be observed, that in a subsequent case (a) it was admitted that the above case was inconsistent with the dictum of the Court of Common Pleas already cited (b), placing the plea of plene administravit on the same footing as a justification in trespass; but it was contended that this was an erroneous view of the case, for a verdict for the defendant on a plea of plene administravit merely goes in protection of the assets, and admits the cause of action, upon which admission the plaintiff might, after a verdict (a) Edwards v. Bethel, 1 B. & Ald. (b) See Hogg v. Graham, 4 Taunt. 254.

135.

for the defendant, have a scire facias against the future assets, and Hindsley v. Russell was relied on to deprive the defendant of the general costs, when two pleas of non assumpsit and ne unques executrix were found for the plaintiff, and plene administravit for the defendant; and it was further urged, that the defendant having put upon the record ne unques executrix a plea false within her own knowledge, had thereby rendered herself liable for debt and costs de bonis propriis. But Mr. Justice Bayley, in delivering his judgment, said, "Although the defendant, by pleading two unnecessary pleas, may have subjected herself to the costs of the issues arising out of those pleas, yet she is entitled to the general costs of the trial. The plea of plene administravit is a plea in bar, and the issue upon that plea is found for the defendant; and if she had gone to trial upon that issue alone, there would have been a verdict against the plaintiff, and a judgment against him. It is true it would be a judgment subject to be opened by scire facias, but the plaintiff still would have had his costs; the defendant then, by pleading double, ought not to lose any advantage that she otherwise would have had by pleading single. The fact of having pleaded several matters can make no difference as to the plea upon which she has succeeded. The plaintiff here claims payment only out of one fund, viz. the assets of the testator, and the defendant, by proving that those are fully administered, shows that there is no such fund out of which the plaintiff's demand may be satisfied. It has been said that the defendant having pleaded a plea false within her own knowledge, has thereby subjected herself to the general costs, but it seems to me that that can make no difference, inasmuch as that plea is joined with another which goes in bar of the whole action. I am therefore of opinion that the defendant is entitled to the general costs."

The subject of the right to, and liability of executors and administrators to costs in actions continued after the death of the parties, under the Common Law Procedure Act, 1852, will be considered hereafter (a).

(a) See post, Chapter XXVII.

CHAPTER XXI.

COSTS IN ACTIONS WHERE THE PARTIES SUE OR ARE SUED IN

ACTIONS RELATING TO BANKRUPTS.

ALTHOUGH assignees of bankrupts are liable to costs as other plaintiffs or defendants (a), there are some statutable provisions respecting costs in certain actions relative to bankrupts which require notice.

The Bankrupt Law Consolidation Act (12 & 13 Vict. c. 106,) enacts (sect. 85), that when any trader against whom an affidavit of debt is filed by any creditor, as mentioned in the Act, shall be summoned to appear before the Court in which such affidavit shall be filed, "every such creditor or trader shall have such costs as the Court in its discretion shall think fit; or the Court may direct the costs of either party of, incident to, or attendant upon such affidavit and summons, to abide the event of any action which shall have been brought, or shall thereafter be brought for the recovery of such demand or any part thereof; and in such case such costs shall be costs

(a) In one case an attempt was made to place assignees on the same footing as executors and administrators. The plaintiff suing as assignee having been nonsuited, an application was made to restrain the Master from taxing the costs of the nonsuit, on the ground that the plaintiff, having sued in a representative character merely, was within the implied exemption from the operation of the statute of the 23 Hen. VIII. c. 15, which had been constantly held to protect administrators and executors suing in their representative character from the costs payable to the defendant by that statute; but

the Court, saying that neither the assignee of an insolvent, nor the assig nees of a bankrupt, had ever been considered within the exemption, refused the motion. Application was then made, on an affidavit stating that the plaintiff had no assets, that the payment of the costs might be suspended until assets should be received by the assignee to be paid quando acciderint : but that the Court also refused: Andrews v. Sealy, 8 Price, 212. Assig nees claiming goods are also liable to the costs of a feigned issue under the Interpleader Act: Melville v. Smark, 3 Scott, N. R. 357.