
    Doan vs. Hine’s administrators.
    
      Costs were refused againt administrators who had suffered a judgment by default, notwithstanding that the creditor had presented his claim within the prescribed'period, made affidavit of the existence of the debt, and offered to refer, where it appeared that the ad'ministratbrs admitted their liability, but requested'a suit to be brought against a co-maker of the note, the claim in question, for whom they alleged the intestate had become bound solely as surety, offering to pay any deficiency there might be after the prosecution of such suit.
    The provision for a reference in these casés was made for the benefit off the creditor, as well as the representatives of the deceased.
    Costs against administrators. The plaintiff was the payee and owmer of the joint and several promissory note-for $500, made by Jeremiah Iiine, the intestate, and by Charles W. Hine. On the first day of May last, and within the time prescribed by the statute for presenting claims, 2 JR. «S'. 88, § 34, the plaintiff served the administrators with a copy of the note, and his own affidavit of the amount justly due, <§> 35, and required payment. He also tendered a stipulation to refer the matter in pursuance of the 36th section of the statute, if the administrators had any doubt concerning the justice of the claim.' Cole, the administrator to whom the papers were presented, said he wanted a few day’s time t© consult his counsel, which was granted. He finally refused (as the plaintiff states,) to do any thing about the matter, and about one month after the papers were served, an action was brought against the administrators to recover the note, and judgment passed against them by default. Cole, in his affidavit, stated that before the suit was commenced, he called on the plaintiff and informed him that the administrators had no reason to doubt that the note was given as the plaintiff alleged, and that the amount claimed was due and unpaid; but that the note was.given for the debt of Charles W. Hiñe—that the intestate had only signed as surety—that the principal was abundantly able to pay, and insisted that the plaintiff ought to collect the money from him. That he requested the plaintiff to proceed against Charles, and told him that the administrators would hold themselves responsible for any balance which might not be collected in that way. Nothing further was heard from the plaintiff until this suit was commenced, which was eight or ten days afterwards. The administrators had at the time no assets in their hands from which the debt could have been paid.
    
      C. Stevens, for the plaintiff,
    moved for costs against the administrators.
    
      A. Taber opposed the motion,
    and cited Swift v. Blair, 12 Wendell, 278. 7 id. 522.
   By the Court,

Bronson, J.

If the defendants, after taking a reasonable time for inquiry, had refused either to acknowledge the justice of the claim, or to refer the matter in pursuance of the statute, and had then suffered judgment by default, the plaintiff would, I think, be entitled to costs. The provision for a reference was made for the benefit of the creditor, as well as the representatives of the deceased, and a refusal to refer is made one ground for awarding costs. 2 R. S. 90, § 41. I do not say that the executor or administrator is bound to refer under all possible circumstances; but as a •general rule, he ought not to decline that mode of •testing the validity of a demand which he is not prepared to admit. There were evidently no special reasons in this case for desiring a trial according to the course of the common law, for the defendants suffered judgment to pass against them by default.

Although the defendants at the time had no assets in their hands for the payment of the debt, the plaintiff had a right to know whether it would be paid in the due course of administration, to the end that he might take the proper legal measures for asserting his claim, if its justice was denied.

In Swift v. Blair, 12 Wendell, 278, the executrix refused to arbitrate—not to refer; and on that ground the motion for costs was denied. But according to the - affidavit of •Cole, one of the administrators, the validity of the claim was substantially admitted, and there was no occasion for either a reference or a suit against the administrators to establish the demand. As there were then no assets, the plaintiff was entitled to nothing more than a reasonable assurance, that the debt would be paid in the due course of administration. Besides : the suit seems to have been brought, before any answer had been given to the equitable proposition, that the plaintiff should first proceed against the principal debtor—the administrators holding themselves responsible for- any balance that might not be collected in that way. There is some conflict in the affidavits ; but the plaintiff, at the most, has only made out a balanced case on the question of costs, and°that is not enough.

Motion denied.  