Our opinion is that under the circumstances of this case there was good reason for the defendant to contest the claims of the present plaintiff before the Judge of Probate, and on the appeal; and that he ought not to be held responsible for the costs in his private capacity, or rather, out of his own estate. The court gave no special directions to the clerk as to the form of entering the judgment. As it now stands, he is liable ; and should he be compelled to pay these costs, we think they would be a fair charge against Dunn’s estate. At the same time, it is evident that if we order the entry of judgment to be corrected, according to the motion, there will be no judgment comporting with that on which the plaintiff has declared, and his action will thus be defeated, though it was properly commenced ; and the defendant will be entitled to his costs. We have concluded, to avoid circuity of proceedings, and trouble and expense, to amend the record as proposed, provided the defendant will consent-lo a dismissal of the present action from tho *50docket. He will then be relieved from all danger from the judgment ; and the plaintiff may charge all his costs, incurred in the prosecution of the appeal, and of this action, in his probate account,
Action dismissed.