
    Thomas Dawes, Judge of Probate, versus William Gooch.
    In debt on an administration bond against a surety, the principal being dead, the defendant pleaded performance generally; the plaintiff demurred because a special performance of each article of the condition was not averred in the plea; the plea was adjudged sufficient.
    
      The plaintiff moved for leave to waive the demurrer and reply. This motion was denied, particularly because the bond was of long standing, &c.
    In such action, costs were awarded against the party for whose benefit the suit was commenced.
    Debt on an administration bond, in which the defendant was surety for Martha Leverett, to whom the judge of probate had committed the administration of the estate of her deceased husband, Thomas Leverett. Dated April 20th, 1778.
    The defendant, after oyer had of the bond and condition, which were in the usual form, pleads in bar, that the said Martha “ did well and truly fulfil, perform, and discharge all and singular the matters and things in the condition of the said writing obligatory expressed, on her *part to be fulfilled, performed, and discharged, according to the form and effect of said condition.”
    To this plea the plaintiff demurs, and assigns the following causes, viz. — 1. That the defendant has not averred, that the said Martha made and exhibited an inventory ; or, 2. That she well and truly administered, &c.; or, 3. That she rendered any account. 4. That it doth not appear whether the judge of probate ordered any delivery of the goods remaining upon the account to be rendered by the said Martha. 5. That it is not alleged whether any last will and testament of the deceased did or did not appear, or was exhibited, &c. 6. That the said plea is a merely general plea of performance, &c., whereas the performance of the several matters, &c., ought to have been specifically alleged, so that the plaintiff could have taken issue thereon.
    The defendant joins in demurrer.
    
      Sedgwick, for the plaintiff,
    cited the authorities in the margin ;  but perceiving the leaning of the Court to be against him upon the sufficiency of the plea in bar, he afterwards moved for leave to withdraw the demurrer and reply.
    
      
       1 Saund. 117, note 1. — Bulst. 43, Stone vs. Bliss. — 1 Show. 1. — 1 Siderfin, 215. -1 Lutw. 419. — 1 D. & E. 753.
    
   By the Court.

We do not grant the motion of the plaintiff for leave to replead. It is now more than thirty years since the appointment of the administratrix, for whose faithful discharge of the trust the bond in this case was given. She is now dead, by which any means of a legal and equitable defence, which may have been in her power, may be lost to the present defendant; and thus more mischief might be produced by the best investigation, which is at present possible, than can arise from finally closing the business where it now stands. The defendant’s plea is adjudged good; and let him have judgment for his costs against the person at whose suit and for whose benefit the action was commenced."] 
      
       This judgment for costs against the endorser of the writ was supported by a precedent in this Court, October term, 1789, in Middlesex. The action was upon an administration bond by-the judge of probate, Prescott vs. Smith M., and judgmer was rendered for costs against Elisha Cutler, for- whose use the action was brought.
     