
    FANNIE H. THOMPSON v. MARCELLUS SMITH et al.
    (Filed 17 April, 1912.)
    Appeal and Error — Executors and Administrators — Bad Faith— Costs — Interpretation of Statutes.
    Tlie motion of plaintiff to tax the defendant administrator with costs of appeal is denied, as he was appellee therein, and nothing appears to the Court to show that he has acted in bad faith, etc. Revisal, sec. 1277.
    Appeal by plaintiffs from Peebles, J., at tbe October Term, 1911, of WaKE.
    
      J. H. Fleming for plaintiff.
    
    
      B. M. Gatling for defendant.
    
   Per Curiam.

Tbis is a motion by plaintiff to tax tbe defendant Marcellos Smith personally witb tbe costs of tbis Court. Defendants were successful in tbe court below in tbe ease, and plaintiff appealed. Tbe judgment was reversed bere, and tbe cause remanded to be further proceeded with in accordance witb law. We do not see any reason, at present, for giving a personal judgment against Smith. He was brought bere by tbe plaintiff’s appeal, and bis conduct has not been frivolous, and be has done nothing to make himself personally liable. Tbe defendants should pay tbe costs of tbis Court, as administrators, and they will be allowed a credit for tbe same in their administration account, unless tbe plaintiff can show sufficient reason to tbe lower court why it should not be allowed. Provision as to tbe recovery of costs against executors and administrators is made in Revisal, sec. 1277, where such costs are declared to be “chargeable only upon or collected out of tbe estate, fund, or party represented, unless for mismanagement or bad faith in prosecuting or defending tbe action, tbe Court shall direct tbe same to be paid personally by tbe representative,” but no such case is presented here. Tbe motion is denied, witb costs to be taxed.

Motion denied.  