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.1 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.2
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