NORCROSS V. BOULTON adr. c. t. a. of BowNE. and it is only by an equitable construction of those statutes, that they are saved from the payment of costs in all cases. Whereas, by our statute (Rev. Laws, 169) executors and administrators. "Prosecuting in the right of their testator or intestate," are expressly exempted from the payment of costs. This however has not altered the law. The exception in our statute, is no broader, than that constructively made under the British Statutes. The reason of the exception is not simply, because executors and administrators are only trustees and acting in auter droit; but because they cannot be presumed to be fully acquainted with the transactions of their testators or intestates; and to know their respective rights and duties. Consequently when an executor in good faith prosecutes an action, which he has "in the right of his testator;" that is, an action which accrued to his testator, in his life time, and is transferred to him as executor; or, which is founded on or grows out of a contract made with the testator, or an injury done to him in his life time; and fails in such action, he shall not pay costs. But where an executor brings trover, founded, as in this case, upon his own possession; or any other action which has accrued to him upon his own transactions as executor, or for an injury done to the property of the testator since his death, he is presumed to know the facts of his case, and the justice of his claim; and in such case he may sue in his own name; and therefore shall pay costs if he fails-Marsh v. Yellowly, 2 Str. 1106; Hul. Law of Costs, 174 and Seq. Hollis v. Smith, 10 East, 293; Grimstead v. Shirley, 2 Taunt. 116; Tattershall v. Groote, 2 Bos. and Pul. 253; Comber v. Hardcastle, s Bos. and Pul. 115. This doctrine appears to me so fully settled at this day, notwithstanding the numerous and conflicting cases, to be found in the books, that I should have thought it unnecessary to refer to authorities, if the point had been settled by any reported decisions of this Court. Not finding however a single case on the subject in any of our own Reports, I have thought it best to say thus much on the subject. The result is, that the Court of Common Pleas erred in setting aside the judgment for costs. 2dly. Does a writ of error lie in a case like this? I do not ask whether such a writ, is the proper remedy? for I can conceive of no other. The proceedings below, being in the course of the NORCROSS V. BOULTON adr. c. t. a. of BowNE. common law, and not in the exercise of a summary jurisdiction, they cannot be reviewed here on a writ of Certiorari. This I think was settled, if any thing was, in the case of Phillips v. Phillips, 3 Halst. 122. It is true, the decision in that case, is very shortly reported; "the Court after taking time to deliberate, ordered the writ of Certiorari to be quashed;" but whether upon the ground, that it was a proper case for a writ of error, or that the proceedings below had been correct, is not stated. I think it fair however to conclude, that the decision of the Court, could not have been based on the latter ground, since, the correctness of those proceedings, does not seem to have been drawn in question, on the argument. The Court then either thought it a proper case for a writ of error, or considered the party without any remedy. But without relying upon Phillips v. Phillips, as an authority for the plaintiff in error, I am of opinion, upon the principles adopted by a majority of this Court, in Evans v. Adams, (3 Green's R. 373) that a writ of error well lies in this case. The application to the Court of Common Pleas, in this case, as in that, was not to the discretion of the Court; but if the party was right, he was entitled ex debito justitiæ to what he applied for. If wrong, as he clearly was, then the Court, did not merely exercise a bad discretion; but they mistook the law, and have given an erroneous judgment; and a judgment that is final and conclusive upon the rights of the plaintiff in error, and from which he can have no appeal, if this writ, will not lie. The order complained of in this case, is in no sense, an interlocutory order; nor of that class of orders or proceedings in the progress of a cause, on which it is rightly held, as in Shorts v. Quigly. 1 Binn. R. 222, and other cases cited in Evans v. Adams, (3 Green 377) that error will not lie. But it is a final judgment, or award, in the nature of a judgment; definitively settling the legal rights of the parties in the matter. And is it so, that any Court in this State, short of the Court of Appeals in the last resort, may render a final judgment against a party, from which, however erroneous, he can have no appeal? I think not. Lord Coke in his Commentaries upon Littleton (Co. Litt. 288. b.) tells us, that a writ of error "lieth when a man is grieved, by any error, in the foundation, proceeding, judgment, or execution; but without NORCROSS V. BOULTON adr. c. t. a. of Bowne. a judgment, or an award in the nature of a judgment, no writ of error doth lie." But is not, an order, setting aside in whole or in part, a previous judgment, or in any way altering or qualifying it, an award, in the nature of a judgment? It certainly appears to me, to be so-and if it is, a writ of error lies to correct such proceeding—A contrary doctrine would result in this; that if a Court of Common Pleas proceed without error, to the rendition of judgment and execution, and then upon motion set aside the execution, or alter the judgment, making it more, or less, the injured party can have no redress. In other words, if the Court below commit any error in the progress of the cause, this Court can correct it on a writ of error; but if they give a right judgment, they may afterward alter it at their pleasure, and however unlawful such alteration may be, this Court cannot review and correct the error. It is in vain to say that we ought not to anticipate such a proceeding; for we have precisely such a case before us now. In Mountz v. Hodg son, 4 Cranch, 324, a writ of error was brought on the refusal of the Court below, to quash and set aside an execution, which had been unduly issued-Marshall Chief Justice said, "the refusal of the Court below, to quash the execution, is by some of the Judges, supposed not to be a judgment, on which a writ of error will lie, others, are of opinion that a writ of error, will lie to that decision of the Court." But the writ of error in that case, was quashed because it was to the Circuit Court, instead of the Justices of the peace of the district of Columbia. Whether a majority of the Court, were of opinion that a writ of error lay upon such a refusal of a Court to quash an execution, does not appear by the report. But whatever doubt there might have been in that case, I think there could have been none in a case like this. I am therefore of opinion, the writ of error in this case, is well brought, and the order of the Court setting aside the judgment and execution as to costs, must be reversed and set aside. The final order of the Court of Common Pleas vacating the judgment in part, and setting aside the execution, has been sent up as part of the record.-We may therefore inspect it. If it was not here, we might on a suggestion of diminution, send a Certiorari for it. (Gilleland v. Rappelyea s Green's R. 138.) NORCROSS V. BOULTON adr. c. t. a. of BowNE. Let the judgment of the Court of Common Pleas vacating the judgment for costs and setting aside the execution, be reversed and set aside, and let judgment be entered for the defendant that he recover his costs of his defence in the Court below, and that he have execution for the same. FORD, J. Samuel Boulton, administrator de bonis non, of James Bowne deceased, with the will annexed, declared in trover, that after the death of his testator, he was possessed of certain goods and chattels, as administrator, that he lost them &c. and that they came to the hands of the defendant, by finding, who converted them to his own use &c. The jury found the defendant not guilty; and the Court gave judgment, that the plaintiff take nothing by his writ; that the defendant recover costs against him, to twenty-eight dollars and thirty cents; and have execution for the same. An execution was accordingly issued. At the next term, the Court, after hearing counsel, on both sides, determined, that an administrator was exempted from paying costs, by the statute; wherefore they amended their record, by entering a rule, that the judgment, so far as relates to costs be vacated, set aside and annulled, and that the execution therefor, be quashed. Upon this, the defendant below, brings a writ of error; in the return to which, under the seal of the Court, the clerk certifies the judgment, not as it is, but as it was at first; together with a copy of the rule for making it as it is. The plaintiff assigns for error, first, the vacating of the judgment, so far as relates to costs; secondly the quashing of the execution. 1. The law has been too long and too fully settled, to be disputed at this day, that if an executor or administrator charge the wrong for which the suit is brought, as being done to himself, and fail to prove his case, that he shall pay the costs; for he sues in that case in his own right; but if he charge that the wrong was done to his testator or intestate, and fail to prove it, he shall not pay costs, for he sued in right of his testator, not of himself. In the case of Bollard v. Spencer, 7 Ter. Rep. 358, an administratrix brought trover for goods lost out of her own possession as administratrix, in which she failed; and on solemn argument, the Court awarded her to pay the costs; for a conversion after NORCROSS V. BOULTON adr. c. t. a. of BowNE. the intestate's death, could be no wrong to him, it was a wrong to the administratrix herself, in her own time, and she need not have declared as administratrix. See also 2 Taunton, 116; 1 Bingh. 249; 1 Com. Rep. 162; 9 Petersd. Abr. Ex. and Adms. So the plaintiff charges here, that he lost the goods out of his own possession, therefore if he had a right to the goods the conversion was a wrong to himself. It is no matter how he acquired his right to them, whether as administrator, assignee, bailee or trustee; nor was it at all necessary to set out how he claimed them. By the exception in our statute, Rev. Laws, 168, Sec. 2. executors or administrators are not to pay costs" when suing in right of their testators or intestates;" but this plaintiff was not suing in right of his testator, for the conversion accrued long after his testator's death; the injury was in respect of his own goods, and therefore it did not come within the words of the exception in the statute; and the plaintiff below being liable for costs, the judgment below is erroneous for not awarding them to the defendant below, and for this cause it must be reversed. 2. But a mere reversal will not help the defendant to his right; we must go further, and give such judgment here, as the Court below ought to have given. It has been said that where the defendant below brings error, the Court above cannot give a new judgment, it can only reverse; the reason assigned is, that he seeks only to be eased and discharged of the judgment against him. Parker v. Harris, 1 Salk. 262; Cuming v. Sibly 4 Bur. 2488; 2 Saund. 101 w; Wyvill v. Stapleton, Stra. 617. But here the defendant below is seeking to recover something, to which he is entitled on the face of the record, and ought to have recovered below; therefore the reason of those cases, cannot possibly apply to this case. A plaintiff would not be remediless, even without a new judgment, for after a general reversal, his cause of action would remain, and he could sue de novo; but the defendant never can sue for these costs; therefore unless we give such new judgment, as the Court below should have given, he will be remediless. Where the plaintiff below brings error and obtains a reversal, we can go further and give a new judgment on the face of the record before us; because he seeks not only for a reversal but for his right; and on the same principle we may do it where the defendant seeks not for a reversal only but |