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1835.

ENGLER

v. TWYSDEN.

be shewn that the plaintiff has been induced to bring it by something like fraud or misrepresentation on the part of the defendant: the mere fact that the defendant when applied to refuses to state the ground of his resistance of the claim, will not suffice. Tindal, C. J., there says: The question is, whether there has been anything in the conduct of the defendants that will justify us in depriving them of the benefit the legislature have intended to give them." And the court of Exchequer, in Godson v. Freeman, 2C. M. & R. 585, 1 Tyr. & Gr. 35, coincided in these decisions of this court. The facts proved upon the trial of this case, as well as those disclosed by the affidavits made in answer to this rule, clearly shew that the plaintiff had not the shadow of a pretence for instituting the present suit; and that the smallest inquiry and exertion would have put him in possession of the fact of the defendant being no longer liable for the debt.

Sir W. Follett, in support of his rule.-From what appeared at the trial, and from what now appears upon the affidavits produced on the part of the defendant, it is perfectly clear that the plaintiff had no means of ascertaining whether or not the defendant had been discharged under the insolvent debtors act; still less whether the name of the intestate appeared in his schedule. The bond being unpaid, it was therefore clearly his duty to bring the action. Formerly, the general rule exempted executors or administrators from payment of costs when they were nonsuited or had a verdict against them, where the action was brought upon a contract entered into by the testator or intestate, or for a wrong done in his lifetime. The late statute, however, has somewhat altered the law in this respect. But it was never intended that executors or administrators should in all cases be visited with costs: a discretion is given to the court to grant or to withhold costs from the defendant, so as to meet the justice of each par

ticular case. The words of the act are," that, in every action brought by any executor or administrator in right of the testator or intestate, such executor or administrator shall, unless the court in which such action is brought, or a judge of any of the superior courts, shall otherwise order, be liable to pay costs to the defendant, in case of being nonsuited, or a verdict passing against the plaintiff, and in all other cases in which he would be liable if such plaintiff were suing in his own right upon a 'cause of action accruing to himself." Undoubtedly, if an executor chooses to bring an action without making due inquiry as to the probability of a successful result, he is not to be relieved. In Godson v. Freeman, the debt had been paid; and in Southgate v. Crowley, the plaintiffs, had they instituted a diligent and careful investigation of the facts before they brought the action, must have discovered that the defendants were not indebted to the estate of the deceased in a larger sum than that tendered. The judgment of this court in Lysons v. Barrow puts the matter upon the most rational footing, and is entitled to great weight. Park, J., in delivering the opinion of the court, there says: main point to consider is, was this a frivolous action? So far from it, that it appears from the affidavit that it was the bounden duty of the plaintiffs to the estate of the testator to bring an action. The defendant claimed no interest in the matter, and frequently declared he should not defend the cause. The plaintiffs were defeated upon a ground which they could not be supposed to apprehend. The promise could only, from the nature of the case, be a promise after the death of the testator; but still, if a verdict had been obtained by the plaintiffs, the fruit of the verdict would have been the testator's assets. The action could only be brought by the plaintiffs in their representative character; for, in their individual state, they had no more right to sustain an action than the greatest stranger. Therefore, though the statute 3 & 4 Will. 4, c. 42, s. 31,

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6 One

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gives costs against executors who fail in their actions; yet, if it shall appear to the court proper to make exceptions to the generality of the enactment, they may do so where there is a reasonable or probable cause for bringing the action as executors or administrators; otherwise we should not find in the clause the important words 'unless the court in which such action is brought, or a judge of any of the superior courts, shall otherwise order.'” The result of that case is, that if, in the exercise of his duty, an executor or administrator fairly and bonâ fide proceeds with his action after having, as far as he reasonably can do so, satisfied himself of the propriety of the demand he is seeking to enforce, he will not, in the event of a failure by reason of some circumstance that is beside the justice of the case, be visited with costs. In the present case, the fact of the defendant being discharged under the insolvent debtors act, so far from being one that the plaintiff might have acquainted himself with by using ordinary exertion, is even now left in very considerable doubt and obscurity.

TINDAL, C. J.-I see nothing in the circumstances of this case that calls upon the court to exercise its discretion in favour of the plaintiff. The statute 3 & 4 Will. 4, c. 42, s. 31, puts executors and administrators (plaintiffs) upon the same footing in respect to costs as any other plaintiffs, with this single exception, viz. that the former may, upon a proper state of facts, apply to the court or a judge for relief, In this there is no hardship upon the executor; for, if he, having used a sound and bonâ fide discretion, fails in the suit, the costs will be payable out of the estate of his testator. The question then is, whether enough has been shewn to us in this case to induce us to hold that this plaintiff stands in such a position as takes his case out of the ordinary rule. I cannot help thinking that the rule laid down in Lysons v. Barrow is rather more

1835.

ENGLER

TWYSLEN.

favourable to executors than the statute will in strictness warrant (a). I think the sounder rule is, to hold the defendant to be in all cases entitled to his costs, unless it shall appear that he has brought the action upon himself by practising something like a fraud upon the plaintiff (6). In the present case there is no pretence for saying that the defendant has in any way misled the plaintiff; but, on the contrary, it appears that the plaintiff, having in his own hands a document calculated to excite his vigilance, altogether failed to exercise that degree of care and caution which his situation demanded of him. In the first place, it is to be observed, that the very fact of the bond having been suffered by the intestate to lie so long unpaid was of itself sufficient to arouse the suspicion of a prudent man, no interest appearing to have been paid in the meantime: it was but reasonable to suppose that there existed some difficulty in its being put in suit. Then, there was the notice of the defendant's intention to petition the insolvent debtors court for his discharge, which was found amongst the papers of the deceased. If the plaintiff had caused proper and diligent search to be made in the office of the insolvent debtors court, he would have learned that the schedule produced, with the indorsement intimating that the petition had been dismissed, with liberty to the defendant to make a second application, did not evidence the ultimate decision of the court, and a very little further search would have brought under his notice the minute book of the clerk, with a D. opposite the defendant's name, which appears to have been intended to denote that the party had been discharged. A careful and prudent man would, under such circumstances, have paused to make more searching inquiry, before he pro

(a) See Spence v. Albert, 2 A. Tyr. 322. & E. 785, 4 N. & M. 385; Ashton (6) As was held in Southgate v. v. Poynter, 1 C. M. & R. 738, 5 Crowley, Ante, Vol. 1, 374.

1835.

ceeded to incur the expense of an action with so slender a prospect of success.

ENGLER

TWYSDEN.

Park, J.-The statute gives the court a discretion as to whether or not they will, upon a careful examination into the facts of each particular case, exempt from costs executors or administrators suing in right of their testator or intestate. The question for us to decide is, whether the circumstances brought to our notice on this occasion are such as ought to entitle the plaintiff to this exemption. The facts to which the Lord Chief Justice has called our attention appear to me to shew very strongly that the plaintiff has been wanting in diligence: no prudent or sensible person would, without more inquiry, have commenced an action on a bond that had lain by so long. The strong presumption is, that the plaintiff relied upon the defendant's inability to establish the fact of his discharge under the insolvent debtors act, in consequence of the schedule being lost. It does not become me to say whether or not some of the expressions contained in the judgment in Lysons v. Barrow are too strong: the judges who concurred in that decision thought that the circumstances of the case warranted them in exercising their discretion in favour of the plaintiffs. Southgate v. Crowley, however, stands unimpeached, and affords a very strong authority in favor of the present defendant. The plaintiff ought not under all the circumstances to have arrested the defendant.

GASELEE, J., concurring

Rule discharged, without costs (c).

(c) BOSANQUET, J., was sitting in the court of Chancery.

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