
    Philip L. Mathewson v. Tillinghast Sheldon, Administrator.
    Where a claim allowed by the commissioners upon the estate of a deceased insolvent is stricken by the administrator from the commissioner’s report, and the claimant recovers, in an action at common law, judgment for his claim or any portion of it, the practice is to order the plaintiff’s costs, as well as debt, to be added to the commissioner’s report; the case falling within the spirit, if not the letter, of sect. 14, ch. 158, of the Rev. Stats, as to the disposition of the plaintiff’s costs.'
    Motion for an execution for costs. The plaintiff, who was a claimant against the estate of Benjamin C. Olney, late of Johnston, deceased, which had been represented insolvent, presented his claim to the commissioners who were appointed on said estate, who allowed it against the same. The defendant, as administrator on-the estate struck the claim out of the report, and compelled the plaintiff to bring a suit at common law, who, after two trials recovered judgment against the administrator on his claim, less twenty dollars, the amount allowed by the commissioners. Notice had been given by the administrator that when the plaintiff moved to have the amount of his judgment added to the commissioner’s report, an objection would be made to having the costs added thereto ; whereupon motion was now made by the plaintiff that the court award to him an execution against the administrator for his costs of suit.
    Lapham, for the motion,
    cited ch. 190, sect. 1, of the Rev. Stats, allowing 'costs to the prevailing party in all civil causes at law where not otherwise provided; insisting that there was no special provision for this case.
    
      James Tillinghast cited
    ch. 158, sects. 11,12, and 13, to show, that in striking out the plaintiff’s claim from the commissioner’s report, the administrator had exercised a power conferred upon him by statute; and, as the jury had disallowed a potion of the plaintiff’s claim, their verdict had justified him in so doing. He cited ch. 190, sect. 5, of the Rev. Stats, to the discretion of the court' in all actions of assumpsit, trespass, and trespass on the case, in which judgment is rendered on appeal, to award costs for or against the plaintiff or defendant, o\' for neither, according to the circumstances of the case ; and urged, that under the circumstances of this case the court should allow the plaintiff no costs whatever.
   The court refused the motion, and ordered the plaintiff’s costs to be added, together with the amount of the claim ascertained by judgment, to the commissioner’s report; holding the case to be within the spirit, if not within the letter, of section 14, ch. 158, of the Revised Statutes, and adding, that the practice had always been in such cases thus to dispose of the costs.-  