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 161was 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 Question is whether, if this Action should be defaulted, and Judgment made up, and Execution should issue, it would not 162issue 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.

What are the Questions, on which Mrs. Bracketts Bars to Danas Actions turn?—The first Question is, whether any Action at all can be maintained vs. the Administrator of an Insolvent Estate excepting for Debt due to the Crown, for sickness and funeral Charges? And the second is, whether an Action brought before the Representation of Insolvency, can be maintained, i.e. Whether an Administrator, by 163delaying to represent the Insolvency, makes herself liable to any suit, that is brought against her. For I take it to be very clear, that when an Estate is represented insolvent, as soon as an Administrator is appointed no Action can be maintained. All Actions must be barred, bar’d I mean for a Time, till the Commissioners have reported and the Average is settled. So that the only Question is, whether Administrators are liable to suits, till the Representation is made? And with submission I think it is certain that they are not. In many Cases it is well known, before a Mans Breath is gone, that he owes more than he is worth, and in such Cases the Administrator would do well to represent the Insolvency, at his first Appointment, but there are many Cases, when it is impossible for the Administrator to know whether his Intestate is solvent or insolvent, the Quantity of his Lands and goods may be unknown, and the Number and Quantity of his Debts is always unknown so that no Computation can possibly be made, and in these Cases, it is certainly reasonable and it is Law, that the Administrator should have some time to examine and calculate before he makes a Representation, for if the Estate is sufficient, it would be folly to draw upon his Intestate and himself and family the Disgrace of Insolvency, and the Curses of the Creditors needlessly, and it would be a Pitty to put the Estate to the Expence of the Commissioners, and the Creditors to the Trouble of making out their Claims before them. In all Cases therefore where it is doubtful whether the Estate is sufficient or insufficient, the Administrator ought to have time to inform himself, and in the mean time, all the Creditors must be debared from suits, or if they will bring them they must do it at their Peril, i.e. if the Estate afterwards proves insolvent, their Actions must be bared and they must pay Costs. Whether some Limitation of the time, is expedient or not, it is not our Business to inquire, if the Laws are imperfect in this respect it is the Business of the Legislature to perfect it, but Mr. Dana cannot avail him self of a Law that has no being.

Now the Case before your Honour, is of the last sort. At the Time of Capt. Bracketts Death, it was very doubtful, with every body, whether he left enough to pay his Debts or not. His Widow, on her appointment, to the Administration, told the Judge, it was uncertain, and asked time to inform herself; and she has been as diligent as she could, considering the distressed situation of her family, in making Enquiry after the Debts. She found Effects enough in her Hands to pay all the Debts that she was apprized of, and so was unwilling to make the Representation, unwilling to put the Estate to needless Charge, and Disgrace, unwilling to put her Creditors to the Trouble of making out 164their Claims with the Commissioners, till she was satisfyd, there was not enough. But new Creditors are daily making their Appearance, who have large demands, and some who were never so civil as to let her know she owed them, have sent her Writts. She was sued in one Action to this Court for some hundreds, on a Note that she never suspected to be in Being. In short she finds most of the real Estate under Mortgage, so that most, if not all the Personal Estate must go to discharge these Mortgages, and then the real Estate must be sold at Vendue, the Event of which is quite uncertain, and therefore the Estate is not sufficient to pay. And as the Estate is insolvent, these suits must be barred. The Law is express, that No Proscess shall be allowed. And I presume the Reason, why the Law has not confined Administrators to narrow limits, is that People must be restrained from rushing on such Estates, and by stifling all the sentiments of Humanity, bringing Destruction on the fatherless and Widows.

The Time for Enquiry, whether the Estate is insolvent, or not, must be dilated on. It is a momentous Point. Must shew, that the time she has taken, is no more than reasonable.

The Administrator is not liable unless it can be shewn that she has intermeddled with the Goods and made payment of any Debt. She has never paid any Debt.