Dawes v. Gooch

8 Mass. 488

Opinion

By the Court.

We do not grant the motion of the plaintiff for leave to replead. It is now more than thirty years since the appointment of the administratrix, for whose faithful discharge of the trust the bond in this case was given. She is now dead, by which any means of a legal and equitable defence, which may have been in her power, may be lost to the present defendant; and thus more mischief might be produced by the best investigation, which is at present possible, than can arise from finally closing the business where it now stands. The defendant’s plea is adjudged good; and let him have judgment for his costs against the person at whose suit and for whose benefit the action was commenced."]

Footnotes

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†

This judgment for costs against the endorser of the writ was supported by a precedent in this Court, October term, 1789, in Middlesex. The action was upon an administration bond by-the judge of probate, Prescott vs. Smith M., and judgmer was rendered for costs against Elisha Cutler, for- whose use the action was brought.