In indebitatus in detinet only on insimul computasset to the executot. Polyxphen praied costs on nonsuit, being as his own debt, which was opposed, because it appears all was as executor, and the suit in that right, as upon escape in executors time, 2 Cr. 361, Barrel. But by Wild this is a matter in the plaintiffs own cognizance, and the accompt is the ground of this actiion, and need not be said as executor, nor shew testament in declaration, but only in the accompt, and therefore costs are to be paid. Twisden None paied costs at common-law, before 23 H. 8, cap. 15, and this is only between parties, which is intended in his proper right, not as executor, and whereever the executor must make his title as executor, though the debt accrew in his time, as here he shall not pay costs ; contra in trover on conversion in his own time, there he need not be named executor ; but here the accompt cannot be alledged to the plaintiff generally, but must say as executor; and 1 Cr. 29, arid Hutt. 78, Peacock and Townly, is doubtfully reported, but must be ruled on that difference, which Rainsford Ch. J. agreed ; and the profert literas testamentarias is not necessary, but aided by verdict : so by Jones Justice, The defendant shall pay no costs, for this money recovered shall be assets, and the account is as executor as on a collateral promise, and per Curiam contra Wild no costs.
Citations:
[1685] EngR 522, (1685) 3 Keb 643, (1685) 84 ER 928 (B)
Links:
Costs, wills and Probate
Updated: 02 May 2022; Ref: scu.397297
