
    Daniel Barrett versus Medad Barrett.
    A judgment in favor oí the judge of probate in a suit upon a probate bond, broug* in his name, for the benefit of a legatee, against an executor and his sureties, may be set off against a judgment recovered by the executor in his individual capacity against the legatee.
    Court, in their discretion, refused to set off the costs in such actions.
    This was a motion on the part of Daniel Barrett to have the judgment in this action, which was upon a promissory nolo, set off against a judgment in an action brought in the name of the judge of probate, but (as appeared by an indorsement on the writ) for the benefit of Medad Barrett as a legatee, against Daniel and his sureties, on a bond given by Daniel as executor of the last will of Eleazer Barrett.
    
      Bishop opposed the motion,
    on" the ground that a set-off can be allowed only between the same parties and in the same capacities. He cited St. 1784, c. 29, § 12; 1793, c. 75, § 4; 1810, c. 84; Simson v. Hart, 14 Johns. R. 63; Slipper v. Stidstone, 5 T. R. 493; Doe v. Darnton, 3 East, 150; Kinnerley v. Hossack, 2 Taunt. 173; Sherman v. Crosby, 11 Johns. R. 70 ; 1 Dunlap’s Pract. 481,482, 483; Duncan v. Lyon, 3 Johns. Ch. R. 351 ; Dale v. Fulton, 4 Johns. Ch. R. 11; 5 Dane’s Abr.468.
    
      Jones, contra,
    
    cited Montagu on Set-off, 6, 9; O'Connor v. Murphy, 1 H. Bl. 657; Schoole v. Noble, ibid. 23; Nunez v. Modigliani, ibid. 217; Mitchell v. Oldfield, 4. T. R. 123; Hathaway v. Russell, 16 Mass. R. 473; Battle v. Griffin, 5 Pick. 167; Middleton v. Hill, 1 Maule & Selw 240.
    
      
      Sept. 1014
    
      
      Sept. 12th.
    
   Per Curiam.

The objection that the two actions are not in the same right, nor between the same parties, is grounded on mere matter of form. Daniel Barrett is answerable individually upon the bond, and the judge of probate is only a trustee for the person to be benefited by the action brought in his name. The judgment is virtually just as if the action had been brought by Medad Barrett for the legacy. It is right therefore that the two judgments, so far as respects the debt or damages, should be set off.

But as to the costs, we think there ought not to be a set-off They may have been advanced by the attorney. This is a question addressed to the discretion of the Court. 
      
       See Robinson v. Leavitt, 7 N. Hamp. R. 77; Goohin v. I Jo it, 3 N. Hamp R. 392.
     
      
       See Chandler v. Dreno, 6 N. Hamp. 470; Revised Stat. c. 97, § 76
     