Two appeals are before us from the judgment of the District Court, rendered on the 9th of November, 1855, upon an account of administra^ tion of this estate; 1st, that of Mrs. Fammy Outterr, and 2d, that of the administratrix.
So far as Mrs. Gutter is concerned, the judgment appealed from is the supplement of that rendered by this court at the May term of 1854 See 9 Ann. *117364. By our decree in that case, the rights of Mrs. Cutter as heir of her mother were reserved.
The Judge of the District Court has now fixed the amount of those rights •at $1,978 33, and the calculation by which he has arrived at that result seems to follow the evidence. The data for the ascertainment of the amount of the community of Reg an and his first wife, are necessarily vague and uncertain. But this vagueness is not the fault of the appellant. It is owing to the neglect of her stepfather, the survivor of the community, to take the proper and legal steps for settling the community; and the appellant ought not to be made responsible for such neglect. Mrs. Cutter's claim of interest upon her judgment against the estate of Regan, as heir of her father, was properly rejected. That judgment carried no interest on its face. See Saunders v. Taylor, 7 N. S. 41.
Mrs. Cutter complains that the syndics of Miller and the assignee of Kohn, Da/ron & Co., who are judgment creditors of William Regan, are improperly preferred to her, because, she argues, the community between her mother and William Regan was dissolved by the death of the former before the debts accrued upon which the said judgments were founded. Mrs. Cutter's mother died in January or February, 1843. The judgment of the syndics of Miller against Regan was rendered on the 20th of December, 1842.
The judgments in favor of Kohn, Damon & Co.’s assignees, arc three in number, and were all rendered after Mrs. Regards death; but of the promissory notes upon which those judgments were founded, the following were executed during- the community:
Six notes of $460 each, dated 1st November, 1842 ; total due by community $2,760. Two other notes, respectively $468 50 and $466 28, were dated 25th March, 1843, consequently after Mrs. Regards death. Total of notes due by Regan alone $934 78.
A payment of $1,802 12 was made on the aggregate claims of Kohn, Dan'on & Co., by the sureties of a former administratrix, on the 31st July, 1854; which is imputable, pro rata, to those notes due by the community, and to those due by Regam, individually.
The appellant pleads prescription of ten years against those claims of Miller and Kohn, Daron & Co. ; but we think that plea cannot avail her. The suits brought against Regan in 1843 and 1844 upon those notes barred prescription as to the heir of his deceased wife. O. O. 3517.
We now proceed to the appeal of the window Regan, administratrix. This appellant attempts to revive the question of the marriage of Regan and the mother of Mrs. Cutter. But this question must be considered as settled by our decision in 9th Annual. She also excepts to a decision of the District Judge refusing her permission to plead on the argument of the cause and after the evidence was closed, that the claim presented by the assignee of Kohn, Daron S Co. does not really belong to said assignee, but had been transferred to another party, with whom William Regan, in his lifetime, compromised and settled it.
The Judge did not err. The plea presented on the 18th July, 1855, declares that the appellant had discovered the facts therein set forth, on the 7th of the same month, or six days previously to her calling them to the notice of the court. It is obvious what confusion would be introduced into the trial of causes if such a practice were tolerated, as to allow new issues of fact to be thus kept in reserve until after the evidence was closed and the argument had *118commenced. Such new issue, if entertained, would require new evidence to substantiate the affirmative; and the opposite party couid not, of course, be refused the right of producing' evidence to rebut. The case might be different were the fact pleaded, one which had just come to the knowledge of the party pleading it.
It is, therefore, adjudged and decreed, that the judgment of the District Court be amended, bjr giving to the assignee of Kohn, Daron & Oo. a preference over Mrs. Gutter, in the distribution of the assets under this account of administration, only for the following notes, with interest, till paid, and costs, viz: two notes, $460 each, interest from 4th of May, 1843 ; two notes, $460 each, interest from 4th of August,’ 1843 ; two notes, $460 each, interest from 4th November, 1843 — subject to a credit of $1,346 paid on the 31st of July, 1854; that the two notes of William Regan of $466 28 and $468 50, with interest and costs upon the same, held by the assignee of Kohn, Daron & Go., be postponed in rank of distribution of those assets to Mrs. Gutter's claim, as allowed by the judgment appealed from ; and that in all other respects the said judgment be affirmed; the costs of the court below to be paid by the succession, those of the appeal of Mrs. Gutter by the appellees, and those of the appeal of Widow Regan, administratrix, by the said appellant.