TESTAMENTARY LAW. 2905

with such further proportion (if any there arose), the court shall there-
upon give judgment that the sum so brought in, deducting the costs sus-
tained by the defendant, be paid to the plaintiff, and the said judgment
shall be pleadable in bar to any action afterwards brought to recover the
said debt; or, in case the administrator shall not tender as aforesaid before
the suit brought, the creditor shall recover no more than the proportionable
part due at the time of the dividend, and such further proportion as he
was entitled to on the coming in of further assets, with interest on each
to the time of judgment.

Object of portion of this section authorizing administrator to retain money to

meet a claim; such retainer does not imply an acknowledgment of debt, or remove

bar of statute of limitations. Pole v. Simmons, 49 Md. 19.

An. Code, sec. 104. 1904, sec. 108. 1888, sec. 104. 1798, ch. 101, sub-ch. 8, sec. 5.
1861, ch. 44. 1888, ch. 262.

106. Executors and administrators shall have full power to commence
and prosecute any personal action whatever, at law or in equity, which
the testator or intestate might have commenced and prosecuted, except
actions of slander; and they shall be liable to be sued in any court of law
or equity, in any action (except for slander and injuries to the person)
which might have been maintained against the deceased; and they shall
be entitled to and answerable for costs in the same manner as the deceased
would have been, and shall be allowed for the same in their accounts, if the
court awarding costs against them shall certify that there were probable
grounds for instituting, prosecuting or defending the action on which a
judgment or decree shall have been given against them. The words " ac-
tions for injury done to the person," hereinbefore used, shall not be held
to embrace actions for illegal arrest, false imprisonment or violation of
the twenty-third, twenty-sixth, thirty-first and thirty-second articles of the
declaration of rights, or any of them, or of the existing or any future
provisions of the code, touching the writ of habeas corpus or proceedings
thereunder; for all of which enumerated wrongs, actions may be main-
tained by and against executors as they may be or might have been by
and against the party or parties deceased.

Costs and counsel fees.

The allowance of a counsel fee of $75 and of costs in an appeal from justice of
the peace (whose judgment was a sufficient protection to the administrator), in a
replevin suit involving property appraised at $40, the personal estate being inven-
toried at $170, held improper. Martin v. Staubs, 142 Md. 271-2.

Allowance of counsel fee and costs held improper in view of this section. Authori-
ties reviewed. Beachley v. Estate of Bollinger, 119 Md. 154.

Where costs are rendered against administrator under this section, such judgment
is against administrator personally and not against estate. Hence administrator's
surety is not responsible. Ferguson v. Cappeau, 6 H. & J. 402.

The authority given orphans' court by see. 5 to allow costs and counsel fees is
somewhat modified by this section. Dalrymple v. Gamble, 68 Md. 164.

This section provides the only restraint upon executors in disputing claims.
Bowie v. Ghiselin, 30 Md. 557.

Generally.

Distinction drawn between right of action under this section for personal in-
juries resulting in death, and right of action under art. 67, sec. 1; each is indepen-
dent of other. History of this section. Stewart v. United Electric, etc., Power Co.,