The application cannot prevail.. The claims are clearly in different rights. The original judgment having been against McChesney and Wilmurt in their individual capacity, the moneys raised under it must be deemed to have been paid from their individual funds. The description of them as administrators in the writ of restitution was necessary to make it conform to the style of action before the justice and in this court. If the estate, as suggested, is insolvent, the consequence of allowing the set off *337would bo that McOhesney and Wilmurt would pay out of their own pockets the balance of the debt due to Rogers beyond the assets of Wilmurt’s estate. Nor should the costs be set off, for they should be paid from Wilmurt’s estate, and conditionally only by the administrators.

In the same case.

Restitution of the moneys paid in satisfaction of the first judgment had been ordered by this court under a rule to shew cause entered at September term, 1825, and made absolute at November term, 1825, upon the production of affidavits, shewing the payment, &c. Hoisted now moved to strike out of the bill of costs on restitution, two items taxed by the clerk, attorney’s fee on argument of the motion to make absolute the rule to shew cause $2, and counsel foe on the same S3. But the court, on the production by Hamilton of a series of precedents of taxed bills on rules for restitution, and upon the uniform allowance of these items in analogous cases, and deeming them within the liberal construction always given to the statute respecting costs, overruled the motion and allowed the items.