
    Abner Peirce versus William Whittemore, Administrator.
    In an action against the administrator of an insolvent estate, who had been guilty of loches in the Probate Court, by a creditor whose claim had been allowed by the commissioners, judgment was rendered for the amount of the dividend awarded the plaintiff by the Judge of Probate.
    Assumpsit on two promissory notes made by the defendant’s intestate, Thomas Whittemore, to the plaintiff.
    The case was referred to the opinion of the Court on the following facts: — That the notes were made as declared on, and for a valuable consideration; that the defendant duly returned an inventory of the intestate’s estate, and having represented the estate insolvent, commissioners were appointed, before whom the plaintiff proved his claim; that on the 13th of November, 1807, the commissioners made their report to the judge of probate, the whole amount of claims allowed by them being 1472 dollars 33 cents ; that on the 15th of January, 1808, the defendant settled his first account of administration, on which a balance was found due to him of 127 dollars 28 cents; that afterwards he obtained license to sell all the real estate * of his intestate, and accordingly sold the same, but did not settle a final account of his administration within the time required by law, and he refused to settle with or pay over any proportion to the plaintiff; that the plaintiff sued this action on the third of March, 1810; that on the 12th of April, 1810, the judge of probate allowed the defendant five months further to settle his administration account, within which time he did settle his final account, after which a dividend of the estate was decreed, at the rate of 25 cents upon the dollar, the plaintiff’s share being 58 dollars 12 cents ; that the defendant thereupon would have paid the plaintiff his said proportion, if he would have received it; but this was not until this action had been brought up from the Common Pleas by appeal, and entered in this Court.
    
      Austin for the plaintiff.
    
      Dana for the defendant.
   The Court,

taking into consideration the equitable circumstance» » of the case, ordered judgment to be entered for the dividend awarded by the judge of probate to the plaintiff upon the report of the commissioners, with interest thereon from the date of the plaintiff’s writ. The Chief Justice referred to the case of Wilde vs. Griffin, which was an action by an overseer of the poor upon a promissory note given by one charged as the putative father of a bastard child. The child died in a month after its birth ; and the defendant had before paid more than the expenses the parish had incurred. Lord Ellenborough, before whom the cause was tried, instructed the jury, that if they thought the money paid covered the whole expenses the parish had been put to, there was no consideration for the note, and they ought to find for the defendant. And they found accordingly, 
      
       5 Esp. Rep. 142. See also Coke vs. Gower, 6 East, 110, there cited.
      
     
      
      
         [It seems to be settled, that a partial failure of consideration will be no defence to a note or bill, unless the quantum be liquidated or certain. Chitty on Bills, 8th Lond. ed. p. 88. — Ed ]
     