
    Nicholson vs. Showerman, administrator, &c.
    To subject an administrator to costs, it must appear that the demand of the plaintiff was unreasonably resisted or neglected.
    
    Costs against administrator. The action was on a promissory note given by the intestate. The defendant pleaded non-assumpsit and plene administravit; the cause was referred, and the referees reported as due to the plaintiff the sum of $175,60; and that on the day of the commencement of the suit, the defendant, as administrator, had in his hands goods and chattels of the intestate to be administered, to the amount of $218,73, The plaintiff moved for costs to be levied of the goods of the intestate. He shewed by the affidavit of the attorney, and the certificate of the referees, that it was proved on the hearing that payment of the note was demanded of the administrator within six months after it became due; that he answered that the estate of the intestate was not liable to pay the note, and that he would contest the same. On the hearing, the defendant denied the making of the note by the intestate, and endeavored to establish the defence that the consideration of the note had failed in whole or in part, and that he had fully administered.
   By the Court,

Sutherland, J.

The motion must be denied. It is not shewn that the demand of the plaintiff was unreasonably resisted or neglected. The action was defended apon the merits, and although the defence failed, it does not necessarily follow that it was improper to have made it; for aught that appears, the evidence in the case may have been nicely balanced.

Motion denied, without costs.  