By the Court.

delivering the opinion.

The action was brought in this case by the administrator of James Hendon, deceased, for a wrong done in the lifetime of the intestate. And the only question is, whether the estate being insolvent, the representative is personally liable for costs ? There being no Statute in the State applicable to the case, the point must be determined by the English Law, as it existed at the time of our Adopting Act.

*848At Common Law, no costs were recoverable by the defendant. But by the Statute 28 Hen. VIII. c. 15, s. 1, it is enacted that the defendant shall be entitled to costs, if the plaintiff be non-suited, or a verdict pass against him in any action, &c. upon a personal wrong done to the plaintiff; or in any action, &c. upon any specialty made to the plaintiff; or upon any contract supposed to have been made between the plaintiff and any other person. (Schley’s Digest, 160.)

This Act, however, was held not to apply to an action brought by executors or administrators for a wrong done in the time of the deceased, or upon a contract made with him ; because the words of the Act extend only to wrongs done to, and contracts made with the plaintiff. Accordingly, it was uniformly held that executors and administrators were not liable to costs when plaintiffs, upon a non-suit or verdict,, ■where the action was brought upon a contract entered into ■ by the testator or intestate, or for a wrong done in his lifetime. (Tidd’s Pr. 978; Wms. on Executors, 1614, 1615.)