
    Executors of Prouty against M’Dougall.
    ALBANY,
    Feb. 1827.
    In assumpsit on promises made to the testator, the plaintiffs recovered before statute referees, $28,70. The suit wag commence(j ⅛ 1820. The accounts of both parties exceeded $400. w
    . The questions were submitted by consent, 1. Whether the plaintiffs were entitled to costs ; 2. If not, whether fj!Cy s]10uld pay costs to the defendant; 3. Whether the J r J plaintiffs or defendant were bound to pay the referees’ fees,
    In assumpsit by executors, brought in the supreine TOfint, ftey revered less than $50. Held, that they covercósts.
    
      Held, also, that, being executors, they were not liable t0
    
    that they were thTd referees’ fees within the statute, (1 it. L. 517,) which imposes this 'jai&g eparty!
    
      S. W. Jones, for the plaintiffs.
    
      N- F Seck> for the defendant,
   Curia.

The suit being; in this court, the plaintiffs are ° 1 r not entitled to costs. Had it been m the common pleas, the rule would have been otherwise, because the accounts of both parties exceeded $400. (4 Cowen, 396.)

Nor is the question affected by the 5th section of the statute of 1818, (sess. 41, ch. 94, p. 80.) This provides, that in any action which may be brought in a justice’s court, the plaintiff, suing in a court of record, shall not recover costs, unless he recovers damages to more than $50. That section says nothing of the defendant’s costs.

The next question is, whether the defendant shall have costs. This depends on the 2d and 4th sections of the statute concerning costs. (1 R. L. 343.) The 2d section denies costs to the defendant, wheret-he plaintiff sues as executor or administrator in right of the testator or intestate, though he fail to recover any thing. The 4th section declares that the plaintiff not recovering in the supreme court more than $50, shall pay costs. But the latter section has iievef been construed to apply to executors or administrators. The same provisions run through various revisáis of our laws; but the cases have been uni* form in protecting personal representatives against costs; and that too, even since they might sue before justices. (2 John. Cas. 209. 8 John. Rep. 379.) The rule laid down in Hamlin v. Hart. (4 Cowen, 396,) applies only to parties suing in their own right.

Another question is, who shall pay the referees’ fees ? By the statute, (1 R. L. 517,) they are to be paid by the prevailing party ; that is to say, the one in whose favor the report is made. The plaintiffs are here the prevailing party. They are to pay the referees, though the fees cannot, as in ordinary cases, be allowed to them in taxation against the defendant.

Eule accordingly.  