after stating the case, pronounced the opinion of the Court. — Three exceptions only are now urged. The first is, that this action of account does not lie — That it would not lie in favor of plaintiff against Sawyer, if he were living, and therefore will not now lie against his estate. This action would not lie in favor of the plaintiff against Sawyer, while they remained co-administrators; and this for the good reason, that Sawyer would be as much liable to the creditors and heirs, as the plaintiff would ; and both and each must account before the probate court. This accounting is necessary to show their respective liabilities, in case of their defaults occasioning suits upon their probate bonds, and this, whether they had given one bond jointly, or each severally. If either ceased to be administrator, while living, by removing from the state, or in any way pointed out by statute, he ought to render his account before the court of probate; and, if he neglects, his bondsmen are liable. But a suit upon the probate bond is at the instance of a creditor or heir. But if a sole administrator resigns, or is discharged while living, his successor may call from him the property he may have retained, belonging to the estate. And he may call it out by a proper action. If it is yet on hand, and he has no lien upon it, it may be called out by an action of trover. Possibly, circumstances might be such, that an action of account would be the most appropriate action. There probably would be no legal necessity of taking the remedy upon the probate bond, if the principal was sufficiently able to respond. In like manner if one of two administrators be discharged, while living, the one who continues to administer represents the whole es*375tate, and has the same powers to collect and administer the estate, as though he were newly appointed a successor to the former ad-nrinistrator.
But whatever course of proceeding the law would require between co-administrators, while living, no argument can be thence drawn to affect this case. Sawyer is not a co-administrator. He ceased to be such by his decease. His estate being represented insolvent, whatever claim there might be upon his estate must go before commissioners, or it would be forever barred. If a creditor or heir of Stark presented the claim, he might choose to present the probate bond. If his bail paid in his life time they might present a claim for remuneration. But the plaintiff, as surviving, and sole, administrator of Stark, has presented his claim direct for the property had and disposed of by Sawyer, and not accounted for. His claim was disallowed; and he appealed. The law requires him to file a declaration of his demands preparatory to a trial on the appeal; which then assumes the form of a suit at common law. And his declaration must be such as is suited to his claim. And, if he has a variety of demands, such as could not be joined in one declaration at common law, he must declare upon them all in separate counts. Otherwise the forms of the common law would destroy his rights under the statute; which must not be admitted, and these must be met by various pleas suited to their nature. And, on trial, verdicts must be formed, that amount to a finding on all the various issues. And, in some cases, the trials must be different. Thus, if the creditor has claims in assumpsit, and on account, and on book account, under our statute, after an appeal from the decision of commissioners, he must declare according to those several claims, and the assump-sits must be tried by jury, and the accounts go to auditors. This, plaintiff has declared in account as bailiff and receiver. On examining the items of the account reported, this appears to be the proper mode of declaring. The items are not at all of a character to be charged on book account; for there has been no sale to Sawyer, of any of the property. It was emphatically property in his hands in trust to account for in some way. As he received it in his capacity of administrator — that he had paid it out as such-in good faith, is good accounting; and that, and his services, might turn the balance against the plaintiff. If the property were goods-- and chattels, that remained unsold at the decease of Sawyer, if Sawyer’s executor chooses to deliver them up on request, or as soon as Sawyer had deceased, treating the same as the property *376of Stark, the plaintiff can have no further claim. The course of proceeding here delineated seems necessarily to result from the regulations of our statute, regulating the settlement of estates represente(^ insolvent. And, according to this course, the plaintiff is rightly pursuing his claim. It has become his duty to complete the settlementof the estateof John Stark,; andhe must get this, as well as the other property of Stark, under his control, before he can pay it out to the creditors and heirs.
Another question presented is this : At the hearing before the auditor, the defendant’s counsel proposed certain questions to the plaintiff, while swearing to his account, with the professed view of compelling a division, between the plaintiff and the estate of Sawyer, of what property should remain after paying the debts of Stark. These questions were, 1st, whether the plaintiff is now holden to the creditors of said estate for their dividends ? 2d. whether the plaintiff has now in his hands any of the estate of John Stark ; and, if so how much ? The auditor decided, that the plaintiff need not answer these questions. This decision was correct. The questions would be proper before the court of probate, on a final settlement of the estate ; but they lead to no facts, with which the auditor had any concern. They had no relation to the accounting. If the defendant had any right as heir, as would seem probable by the facts stated in the report, that would not affect this accounting ; but only would affect the division, that must be ordered by the court of probate, after the administrator has got the estate into his hands ready to be divided.
The remaining question is, whether the plaintiff shall recover cost, or be compelled to pay the cost to the appellee. The statute, page 354, provides, in general terms, that the party recovering on such appeals, shall recover costs, as in other actions at law. Afterwards the courts are empowered to tax costs either way in their discretion. We think this discretionary power was given for the purpose of checking frivolous appeals. Here the plaintiff’s whole claim was disallowed. In that view his appeal cannot be frivolous ; especially as he now recovers upon the merits. It appears by the report of the auditors, that, when the defendant was disposed to take advantage of the statute of limitations, before the commissioners, the plaintiff seemed to dislike it, and not care which way they decided. By this, the defendant must then have understood, that the plaintiff intended to appeal if the claim was disallowed. The defendant now abandons that defence, which gave such umbrage to the plain*377tiff. The cost must be taxed for the plaintiff, as in ordinary cases, for the recovering party.
Smalley & Adams, for plaintiff. Allen & Turner, for defendant.The judgement oí the county court is affirmed, with costs, and this decision must be certified to the court of probate, whence the appeal was carried to the county court.