case gale against till executor and administrator if plaintiff in the original  action be not liable to cost on error though the judgement be affirm but in  such case if they be defendant in the original action they be liable to cost  in error S c lev S c comb S c Carth S c skin a administrator bring a writ of  error to reverse a judgement against himself but the judgement be affirm a  motion be now make that he shall pay cost because it be his own fault to bring  a writ of error to delay the plaintiff and to put he to charge and where a  administrator be guilty of any wrong or injury do which lie within his own  know edge and which he may prevent there if judgement be against he cost must  be pay modern as if a administrator shall bring trover and conversion for the  good of the intestate and the conversion happen to be after the administration  grant and judgement against he in such case he shall pay cost Atkey v hear cro  car SC Jones Worfield v Worfield latch see also comy Rep Cas bring c b barn b  r h Tidd on cost a it be true there be a case report by justice croak wherein  the law be hold to be otherwisePeacock v steer cro car see also lev Mod b the  case be thus videlicet a executrix bring a writ of ravishment of ware and  issue be join upon the tenure it be find against her three judge hold that she  shall modern er p not pay cost of who the reporter say that justice Hutton be  one but that judge in his own report declare himself to be of another opinion  in the same case c Hutton under the name of Townley v steel where it appear  that the plaintiff after evidence be nonsuit but see eve v Moccato salk Barret  v Winchcomb cro James Fetherstone v Attybone cro Elizabeth and hullock on cost  c with who justice Yelverton agree that cost shall be pay and their reason be  because the action be bring by the executrix upon her own possession and for a  injury do to herself by take away the ware who marriage do belong to her so  that this can be no authority against the payment of cost in this case all the  case which mention cost not to be pay by a executor or administrator be where  the action be bring in the right of another videlicet upon contract see cro  James Bulst stram will burr sayer on cost Tidd on cost a obligation Hayworth v  David cro James b or other specialty Barret v Winchcomb cro James c or thing  make to the testator himself and for which the executor bring the action but  where the suit be find upon their own contract and a verdict against they or  they suffer a nonsuit they must pay cost therefore if a executor declare on a  trover and conversion in the testator lifetime and also on a trover and  conversion after his death and the evidence offer be only applicable to the  first count he shall not pay cost though he be nonsuit but if a plaintiff name  himself executor when he need not and fail he shall pay cost cockeril v  Kynaston term Rep see also latch Mod salk stram d e contra the judgement  against this executor be in auter law and therefore as it have be say no cost  shall be pay it be a recovery de good testator and the writ of error now bring  can be call a action in his own right for it be to reverse that judgement and  to have a restitution to the testator estate not for his own use but for the  performance of the will the authority cite on the other side be not applicable  to this matter they only prove that cost shall be pay by a executor where he  declare upon a immediate tort do to himself and find against he but this writ  of error be bring to have relief in the testator own cause curian by the  statute of James c it be enact that no execution shall be stay by a writ of  error unless the plaintiff in the say writ give bail to the plaintiff in the  action in double the sum recover to pay the debt and damage and modern cost if  the judgement shall be affirm it be always hold that a administrator who bring  a writ of error shall not give bail coan v bowl ante chetwin v Fenner side  goldsmith v hall cro James fitzwilliam v more side lev leg v Richard vent  saltern v win b r h stram see also cro car Bulst light burr e though he be not  exempt by the statute neither shall he pay cost in this case S c lev S c Carth  say that the administrator in this case be defendant but in S c comb it be say  that he be plaintiff in the court below with which S c skin seem to agree and  all the report agree that the court hold he be not liable to cost in easter  term Geo however where a executor be defendant and judgement be give against  he de good not common with others which judgement be affirm on error Lord  Harwicke hold that the case of bail do not govern in case of cost and that the  executor and administrator be when defendant liable to cost in original action  be also liable to cost in error caswell v Norman bar king b stram so also in  Hilary Geo where judgement de good testator be give against a executor and on  error the judgement be affirm the court of common plea unanimous adopt the  distinction that executor and administrator when plaintiff be not liable to  cost in error but that when they be defendant they be liable because as  plaintiff they be not but as defendant they be liable to cost in the original  action William v Ryley h Bl Rep see also Mod bull n p will term Rep hullock on  cost f modern er p