#### Daniel Coffin *versus*David Cottle.

On *scire facias*the plaintiff alleges that he recovered judgment against the estate ol an intestate under the administration of the defendant, and that execution was issued and payment of it demanded of the defendant, but refused; and the writ re* quires the defendant to show cause why execution should not issue *de bonis*proptiis. The defendant pleads, that administration was committed to him by the judge of probate for Nantucket; that the estate was represented insolvent and commissioners were appointed; that the judge presented to them a claim of his own, which was allowed and reported accordingly; that the judge, at the time of granting the administration, was, and ever since has been, interested in the estate as a creditor, and that the administration and all proceedings thereon were therefore void; that afterwards the defendant was duly appointed administrator by the judge of probate of Barnstable, who had exclusive jurisdiction, and that the estate was represented insolvent and commissioners were appointed, and they had not yet reported, the time allowed them not having yet elapsed. It was *held,*that this plea was sufficient; but that without the averments that the first administration was granted by •the judge of probate of Nantucket, and that he then was and to the time of the ne-v grant had continued to be interested in the estate, the plea would have been insuf ficient.

Where, after issue joined, the defendant filed a plea *puis darrein continuance,*which on demurrer was adjudged bad, he was allowed to amend on paying c.'Sts since the filing of the plea, and on condition that he should not recover cost foi that period, in case he si v Id ultimately prevail.

This was a writ of *scire*facias, in which it was alleged that at March term 1827 of this Court," Coffin the plaintiff recovered judgment against the goods and estate of Nathaniel Russell, late of Nantucket, deceased, in the hands and under the administration of Cottle the defendant, for the sum of $1523 debt and $ 97 costs; that an execution was issued, returnable in November 1827, and that payment of it was demanded of the defendant, but that he refused to pay it, and that he had committed waste; and he was required to show cause why execution should not issue against him *de bonis propriis.*

The *scire facias*was returnable at March term 1828. At that term the defendant filed two pleas. He pleads first, that havin0 .;een duly appointed administrator, he represented the estate to be insolvent ; that commissioners were appointed ; that the plaintiff laid his claim before them and they allowed only a part of it, viz. $ 805 ; that he gave notice of his intention to prosecute his claim at common law ; that he accordingly brought his action, and at March term 1827 of this Court recovered judgment for $ 1523 and costs, against the estate of *293the intestate in the hands of the defendant as administrator; that the execution on this judgment issued improvidently, irregularly and contrary to law ; that the defendant has duly settled his account of the estate, and has allowed all the proceeds of the estate which have come to his hands or knowledge, in order that the same might be distributed and paid agreeably to law ; that the estate is in fact insufficient to pay all the debts allowed by the commissioners, including the judgment recovered by the plaintiff, which was duly added to the commissioners’ report; without this, that the defendant has committed waste.

The defendant pleads secondly, that since the rendition of the plaintiff’s judgment, it has come to the knowledge of the defendant, that Isaac Coffin, judge of probate for the county of Nantucket, by whom the letters of administration were granted, was at the time of granting the same, and still is, a creditor of the estate of Russell, and has presented his claim as such, and so is interested in the estate, and being so interested therein, the judge had no jurisdiction over the same, but that at the time of granting administration and ever since, the jurisdiction pertained to the judge of probate for the county of Barnstable, and so the proceedings of the judge of probate for Nantucket are and were absolutely void, and the defendant never was administrator and never did administer or intermeddle with the estate of Russell.

At November term 1828, the plaintiff filed his replications. To the first plea he replies, that the defendant did negledt to exhibit and settle his account of his administration within six months after the report of the commissioners had been made to the judge of probate, so that by reason of such neglect the judge could not proportion the estate among the creditors, and the judge did not allow any further time for exhibiting and settling such account ; whereupon the plaintiff, being a creditor, did prosecute his suit wherein the judgment was rendered, then already commenced, unto final judgment, which judgment was therein rendered and execution awarded thereon, in the same manner as if the estate had not been represented insolvent, whereupon execution did issue and has been returned as al*294leged in the *scire facias,*and the defendant has wasted the g°°ds and estate of Russell as alleged in the *scire facias.*

To the second plea the plaintiff replies, that before the commencement of the suit upon which the judgment was rendered, viz. on April 9th, 1824, it did come to the knowledge of the defendant that the judge of probate for Nantucket was a creditor of the estate and had presented his claim as such creditor, and that after notice thereof the defendant did administer and intermeddle with the goods and estate which were of Russell at ,the time of his death.

At the same November term, the defendant rejoins to the first replication, that within six months next after the commissioners made their report, viz. on. the 23d of the same April, the defendant did exhibit to the judge of probate a true account of his administration, which the judge allowed and settled , that on the 20th of June then next, he obtained license to sell real estate of the deceased, for the payment of his debts, and in pursuance thereof he did sell the whole of the real estate, and afterwards, on the ISth of January, 1827, and before the plaintiff had recovered his judgment, and before the same was added to the list of claims allowed by the commissioners, to be paid in due proportion out of the estate of the deceased, the defendant exhibited his second account of administration, comprehending therein all the moneys received by" him for the real estate, to the end that the judge of probate, so soon as the list of claims could be completed, might proportion the same among the creditors, and that the defendant’s account was allowed by the judge and duly settled ; without this, that the defendant neglected to exhibit and settle his account within six months after the report of the commissioners had been made.

To the second replication the defendant rejoins, that after notice that the. judge of probate was a creditor, the defendant did not administer or intermeddle with the goods and estate which were of Russell at the time of his death ; concluding to the country.

At the same term the plaintiff surrejoins by tendering an issue to the country upon the traverse in the first rejoinder, and by joining issue on the second rejoinder, and the defendant joins issue on the first surrejoinder.

*295During March term 1829, viz. on June 19th, the defendant filed a plea, alleging, among other things, that *after the last continuance*of this cause, viz. on the 10th of March, 1829, the defendant was duly appointed administrator on the estate of Russell, by the judge of probate of Barnstable county, who had and still has exclusive jurisdiction thereof by reason of the interest of the judge of probate for the county of Nantucket in the estate of the deceased, as a creditor thereof, and afterwards, viz. on May 19th, 1829, at a probate court for the county of Barnstable, the defendant, having received a list of the claims due from the estate, represented the estate to be insolvent; whereupon commissioners were appointed with power, during six months, to receive and examine all claims of the creditors ; that the commissioners gave notice of the times and places of their sitting for that purpose ; that they have not yet made a report, the period assigned for the performance of their duties not having elapsed ; without this, that the plaintiff has wasted the estate as alleged in the writ of *scire facias.*

To this plea the plaintiff demurred generally.

*Rand*and *K.*Whitman, in support of the demurrer,

objected that there was nothing in the new plea showing that the first administration was void, or that it was granted by the judge of probate of Nantucket.

The plea of insolvency of the estate is not an answer to the *scire facias,*the plaintiff having obtained judgment and execution against the administrator, and the administrator having refused to satisfy the execution.

If the Court could inquire whether the first administration was void, and should find it so, still the plaintiff is entitled to judgment, for it was through the neglect and fault of the defendant that the judgment was obtained ; since he must have known from the list of claims, that the judge of probate of Nantucket was a creditor.

The effect of this plea *puis darrein continuance*is to waive the former pleas, on which issues were joined. The plaintiff had made preparations to try those issues, and upon the filing of this new plea he ought to be allowed costs, as in the case of an amendment.

*T. Fuller,*for the defendant,

denied that there was any *296laches in the defendant in not ascertaining the effect resulting from the intestate’s being indebted to the judge of probate of Nantucket, it being a doubtful question ; Cottle, Appellant, *&c.*5 Pick. 483; and he insisted that the plaintiff’s execution had issued improvidently, and that the .judgment should have been merely added to the list of claims.

*Per Curiam.*

The plea since the last continuance is insufficient. It does not show that the first administration was granted in Nantucket, nor that the same person was judge of probate of Nantucket and interested in the estate, when the second administration was granted. It should appear that the first letters of administration were granted in Nantucket, and that the judge for that county was interested at the time when he granted them.

The defendant has leave to amend on payment of costs since this plea was filed, and he is not to recover costs for that period, if he shall ultimately prevail. The waiver of the former pleadings by the plea *puis darrein*continuance, will not debar him from recovering costs from the commencement of the action, if he shall be the prevailing party.

At the November term 1830, *Shaw*C. J., *Wilde J.*and *Morton*J. being present, *Rand*requested that the order respecting costs should be varied, and he contended that if the plaintiff ultimately prevails, he is entitled to costs as well before as after the filing of the plea puis darrein continuance, but that if the defendant prevails, he recovers only the costs subsequent to the filing of the plea. *Lyttleton*v. Cross, 4 Barn. & Cressw. 117; 1 Archb. Pr. of K. B. 178. The plaintiff claims costs from the beginning of the action, in like manner as if there had been an issue to the country, a trial and verdict.

*Fuller*also desired that the order should be so altered as that the defendant should not be compelled to pay costs for the leave to amend.

*Wilde*J.

observed, that the practice of this Court in regard to costs proceeds upon the ground of indemnity for the delay occasioned by bad pleading.

Afterwards the original order was confirmed.

The defendant amended his plea, by averring that administration was committed to him by Isaac Coffin, then and ever *297since judge of probate for Nantucket, and that the defendant accepted the trust; and afterwards, the estate being represented insolvent, the judge, on the 18th of September, 1823, appointed commissioners, and that Coffin, the judge of probate, presented to them a claim, which he alleged to be due from the estate to himself, which the commissioners allowed, and placed on the list of claims allowed, and that they made their report on the 8th of April, 1824 ; that Isaac Coffin, judge as aforesaid, at the time of granting the administration, was in fact and thenceforth to the present time has been and yet is interested In the estate as a creditor thereof, and that the administration so by him granted-in the county of Nantucket, and all the proceedings thereon, were and are therefore null and void.

To the plea so amended the plaintiff demurred, but at March term 1831, it was adjudged to be sufficient.1

1

 See *Sigourney*v. Sibley, 22 Pick. 507; S. C. 21 Pick. 101; Revised Stat. 83 § 15 ; *Judge of Probate*v. *Tillotson,*6 N. Hamp. R. 297.