Chamberlin, Admr. against Spencer and Spencer

Chamberlin, Admr. against Spencer and Spencer. Where an ces for m^^ had and reuse after the minlstration011' granted, _ ho oml SUO,iamok; and if he recover less than $50, must pay fendanl'which may bo sot off against the damages. Assumpsit for money had and received by the defenants to the use of the plaintiff, after the death of his intes£a|e an¿ after the plaintiff had taken out letters of administration. The plaintiff sued as administrator for a trover and conversion of the goods of his intestate, recovered judgment, and retained the defendants as attorneys, to bring debt on that judgment. They did so, obtained a second judgment, anq collected the money, for the balance of which this ac- , J 7 . „ _ . 1/Y, tion was brought m the name of the plamtiif as admimstrator who recovered, a verdict at the Circuit for #26 63. J. A. Spencer, for the defendants, moved to set off these damages against the defendants’ costs; and read an affidavit, that the defendants had procured the costs to be regularly taxed, and had offered the plaintiff’s attorney to set them off, which he declined. He cited 1 R. L. 343, s. 2; 12 John. Rep. 289 ; 2 id. 377; 4 id. 190; Bac. Abr. Costs, (E) 3; 3 Burr. 1584; 16 John. Rep. 148; 6 Mod. 181-91; 17 John. Rep. 268; 2 id. 377; Hullock’s L. C. 199, and the cases there cited; 6 Mod. 92; 11 id. 174, S. C; id. 135; Tidd’s Pr. 893; 8 John. Rep. 379; 2 John. Cas. 209; Laws N. Y. sess. 47, ch. 228, s. 1,33; 4. T. R. 280 ; 5 id. 234; 7 id. 354. Edward Allen, contra, cited Tidd’s Pr. 893-4; id. 897; 1 Salk. 207; 11 John. Rep. 403. [MAJORITY — Curia.] Curia. The plaintiff might have sued for the money in his own name, and is therefore liable for costs. Goldthwayte and wife v. Petrie, (5 T. R. 234-5,) and Jenkins et ux. v. Plombe, (6 Mod. 91, id. 181, 1 Salk. 207, S. C.) are in point. These cases were fully considered and adopted in Ketchum v. Ketchum, (4 Cowen’s Rep. 87.) The only case against them is Eaves v. Mocato, (1 Salk. 314;) but this has never been acted upon; and there is reason to believe, from the mention of it in Jenkins v. Plume, (id. 207,) that it was wrongly reported; being an action on an insimul computassent; and not, as mentioned in the report, for money had and received. The motion must be granted. Motion granted.