Costs are not asked on the ground that “ payment was unreasonably resisted or neglected,” but because “ the defendant refused to refer ” the demand pursuant to the statute. (2 R. S. 90, § 41.) No defence at law was pretended. The plaintiff was required to present his demand to the administrator, and was at liberty to bring suit for its recovery. Consenting to a reference would not have furnished an obstacle to relief in equity. As the defendant refused to refer, and a report has been made in favor of the plaintiff for the amount of his demand, he is entitled to his costs, unless the defendant shall finally prevail in the court of chancery.
Motion granted.