This plaintiff puts Ms claim upon two grounds— 1. That the Defendant unreasonably neglected and resisted the payment of Ms demand.
2. That it being the continuance of a suit commenced against the intestate in Ms life-time, costs should follow as if he had lived.
As to the first point, the affidavits are too obscure and defective to sustain the motion on that ground alone. I think, however, that on the second ground the Plaintiff should recover Ms costs. The Defendant, Elmendorf, had suffered a default and interlocutory judgment to be entered against him, in his life. This was an admission of indebtedness, and the Plaintiff could at once have proceeded to have the damages assessed by writ of inquiry, and might have perfected his judgment and collected Ms costs. He delayed doing this at the Defendant’s request. The administrators then come in and plead, and put the Plaintiff to the expense of establishing Ms claim before referees. I see no good reason why the estate should not pay the costs-
I am decidedly opposed to extending the exemption of executors and administrators from liability to pay costs beyond the strict terms of the statute. The rule in this state is already much more liberal than the English rule, or that of the neighboring states; and I am well persuaded that their immunity, in tMs respect, here, induces persons acting in these capacities to prosecute, as well as defend against, claims, frequently, wMch, under different circumstances, would be amicably and easily adjusted.
The plaintiff has leave, therefore, to enter up Ms judgment against the Defendants for costs, to be levied on the property of the estate, with $10 cost of tMs motion.