This case occurred in the same Way, at the same time and place. The question submitted was,' whether an administrator plaintiff should pay costs. The decision of the district court, and of the constitutional court was as in the above case.

See Administrator of Swift v. Roalwine, ante, 175. Bul. N.P. 332. 2 Str. 871. The statutes respecting costs do not mention executors.

Note. By the common law, costs'were not recoverable in any plea, personal’ or mixed 3 Com. Dig 230. The stat of Glouc. 6 Ed. 1, gave costs iii all' cases, where damages are given, to the plaintiff 2 Inst. 288. The stat. 23 H. 8. e. 15/ P. it 47, gave the defendant costs where the plaintiff is nonsuited, or lias verdict against him. At common law he was amerced pro falso clamore. The reason why executors and administrators shall not pay costs is, that they are not *385bound by the judgment, but only the assets of the deceased. They act in Hater droit, and are not presumed to intend a wronglul recovery Gilb G. P. 274. But executors and administrators are liable to pay costs of non pros 6 T. B. 654. Assumpsit by an executor upon a promise to his testator, and he was nonsuit: no costs allowed. Cro. Kliz. 69. But if an executor sues in his own right, as for a trespass since testator’s death, he Shall pay cost-i, because the action should be in his own rigid. Cro Car 219. 2 Ld. aym 865. But for a wrong done to the testator, an executor pays no costs upon a nonsuit, or verdict. 3 Salk. 105. Secus where lie grounds his action upo a contract to himself. 1 Ld. Raym. 437. So if he sue as executor, for money received by. defendant, since testator’s death. 5 T R. 234. See 4 .. R 277 11 Vin. Abr. 280. 9 Vin. Abr. 283 Ifhe is miscognizant of the cause of action, he shall not be liable for costs. 9 Vin. Abr. 284 Yet the executor ot defendant pays costs in all cases; and judgment is debonis testaioris si, Sec. etsinon, tunc, 8?c 1 Bac Abr. 513. See4Bur 1928. 3 Bur. 1584 Butif an executor make wilfnldefaull, &.c he shall pay cost» 1 Salk. 207 Vide Hardres, 165. 2 Inst. 286. Plowd. 183. 1 Ventr. 92, 94 2 Lev. 165 3 Keb. 624, 643. The sta Marlb. 52, Hen. 3, c. 6, the first stat. that gave defendant costs. See 2 Inst. 112. 6 Vin. Abr. tit. costs.