1760. Octr. 13th. Monday.
Attended Mr. Niles’s Court this morning for John Holbrook Junior in an Action of his against Benja. Thayer Junior. Holbrook agreed with Thayer, to submit all Demands together with both Actions to 3 men.
Mr. Niles told me, that he consulted Mr. Thatcher about entering his Action against Mrs. Brackett. Thatcher told him, it was as likely that she would recover Costs against him, as that he would recover Judgment against her, And therefore advised him not to enter. Niles’s Action is exactly like Neals. How came Thatcher to advise to one Thing and Dana to another? The Answer is Dana dont care, how the Action goes. He is sure of his Fee and attendance, whether he gets or looses his Cause.
Thus I find the Bar is divided. Gridley is at a loss. He told me it was a Point of Law that would require a leisurely Examination. Thatcher is uncertain, but thinks it as likely to go in favour of the Administratrix as against her, and how much more likely he did not say. Kent says, the Administratrix will recover Costs, in Spight of the Devil, and he has recovered many a Time in such a Case.—It is a great object of Ambition to settle this Point of Law, whether a suit brought against an Administrator, who after the Commencement, Entry and several Continuances, represents the Estate Insolvent, shall be barred, and the Administrator allowed Costs?
I cannot be compelled to accept Mr. Dana’s agreement not to take Execution. And I insist upon it, if he has Judgment, he may take Execution, and if he takes Execution, what shall hinder the officer, from levying the whole Debt, and then what becomes of the Province Law, relating to insolvent Estates? The Words of the Law are “when the Estate of any Person deceased shall be insolvent, or insufficient to pay all just Debts, which the deceased owed, the same shall be set forth and distributed, among all the Creditors in Proportion to the sums to them owing, so far as the said Estate will extend.”
No Debts whatever are excepted from the Average, but Debts due to the Crown and the Charges of the last sickness and of the funeral. The Charges of the funeral, of the last sickness and Crown Debts are to be first paid, and then an Average is to be settled by Commissioners of Insolvency, before the Administrators can pay another Debt. There is no Exception of Debts legally demanded before the Representation of Insolvency. If Debts legally demanded, were to be excepted from the Average, every Debt would be excepted from the average. As soon as the Intestates Breath is gone, every Creditor will bring his Action, will make his legal Demand. If this had been Law and known to be law, 500 suits would have been brought vs. this Administratrix, within a Day after she took Administration. If this Rule of Law should be established, it would prove the Destruction of every Intestate Estate in the Province that is considerably in debt. Every Creditor would bring his suit, immediately, and thus the Costs of Suits would amount to a greater sum, oftentimes than the Debts.
It would indeed, furnish Employment to the Lawyers, and perhaps, a secret Regard to Interest has blinded some to the Inconveniences, that must attend it. I think the Point is clear, that a legal Demand, before the Representation of Insolvency cannot intitle any Creditor to recover his whole Demand.
Now the Q[uestion] is whether, if this Action should be defaulted, and Judgment made up, and Execution should issue, it would not issue for the whole sum; and if it issues for the whole sum, the sheriff must levy the whole sum. So that, if Judgment should be rendered now, the whole Demand would be recovered—for this Court cannot consider an Average, that is not yet settled.
Well, should this Action be continued, along from Court to Court, and Judgment be entered after the.1
In answer to Sewals objection, I say, that an Administrator de Bonis non, could not maintain an Action vs. this Defendant, on this Note. But the Administration of this Administratrix must bring the Action, and stand accountable to the Administrator de Bonis non, for the Money, and if this Defendant should break, or die insolvent this would be a good Account.
Her delay to represent this Estate insolvent is of no Consequence at all. She was in Hopes, the Estate would have been sufficient, and she wanted to make a Calculation between the Estate and its Debts, before she made that Representation. She did not want to give the Creditors the Trouble of making out their Claims before Commissioners, if she could pay them without it. She acted in short as every prudent Administrator would do, to save herself and family the Disgrace and Curses of Insolvency, and to save her Creditors, the Trouble of making out their Claims, but People at last grew impatient and some Gentlemen had propagated an Opinion that those who made a legal Demand before the Representation, would recover their whole Debts, and summons’s flowed in upon her from all Quarters. Several Actions were brought against her, at Plymouth Court, and several more to this Court, and she saw that Ruin would insue to herself and family if she did not.
Now had this Representation been made when she took Administration, 18 months at least would have been allowed to examine Claims. But 6 months were allowed [over?] so that the Creditors will receive their share quite as soon as they would, if it had been represented sooner.
1. Thus in MS.