
    [Philadelphia,
    February, 6th, 1836.]
    M'WILLIAMS against HOPKINS, ESQ.
    A judgment for costs obtained against an administrator plaintiff in another Court, and assigned by the defendant there to A., cannot be set off against a judgment for damages obtained by such administrator against A. in this Court.
    This was an action on the case brought by Mary M'Williams, administratrix, &c. of James M‘Williams deceased, against Joseph R. Hopkins, Esq. At a Court of Nisi Prius, held at Philadelphia on the 9th of December,. 1835, a verdict was rendered for the plaintiff, with $661 damages; upon which judgment was entered.
    Mr. Randall for the defendant,
    having obtained a rule to show cause why the defendant should not be allowed to set off against this judgment, a certain judgment for costs obtained against the plaintiff in a suit brought by her as administratrix, in the District Court, and assigned to the present defendant; the rule came on'for argument this day.
    It appeared that Mrs. M'Williams, as administrator of James M‘Williams, brought an action in the District Court for the City and County of Philadelphia, to June Term, 1824, against John Swift, Esq. which was referred to arbitrators,and an award made for the plaintiff. The defendant appealed from the award, and upon the appeal paid costs amounting to $102, independently of the fees of witnesses. • ' '
    On the trial of the causea verdict was obtained for the defendant; and judgment being entered thereon, he became entitled to recover back the costs he had paid. This judgment was assigned to the defendant, Hopkins, on the 2d of January, 1836.
    Mr. Randall now contended that the set-off was admissible. He cited Montague on Set-off, 6. 11. Jacoby v. Guier, (6 Serg. fyR. 448.)
    Mr. Earle, contra.
    The judgment is betweeen different parties, and in a different Court. A judgment for costs is not de bonis tesiatoris. Besides, the judgment is several years old, and cannot be enforced without a scire facias.
    
    Mr. Randall in reply.
    It never has been considered necessary to issue a scire facias, where there is a judgment for costs merely. The practice is to issue execution at any time without a scire facias. In Muntorf v. Muntorf, (2 Raiole, 180,) it was decided that an executor plaintiff is bound to pay costs to the defendant in case of nonsuit, or verdict for the defendant. Here there is no evidence of the insolvency of M‘Williams’s estate.
   Per Curiam.

A set-off of the judgment for costs assigned to the defendant, which has been recovered in another action, cannot be allowed. These costs, though incurred in an action by the plaintiff as administratrix, are her proper debt, and the judgment for them is de bonis propriis. It is true they may be allowed to her out of the estate in the settlement of her accounts; but that is not an inevitable consequence ; and to allow them here by defalcation of judgments, would be an usurpation of the power of the Orphans’ Court. The rule must be

Discharged.  