
    Zadock Wright et ux. Executrix, &c. versus Warren Dunham.
    If a claim against an estate represented insolvent is filed before commissioners of In. solvency and they allow part of it and reject the residue, and the creditor does not, pursuant to the statute, give notice of his dissatisfaction with their report, and afterward the e‘ scu^r brings an action against the credit upon a demand in favor of the estate, and which was not laid before the commissioners, the creditor is not precluded from filing in set-off that part of his claim which was rejected by the commissioners.
    Assumpsit upon a promissory note made by the defendant to Ichabod Dunham, the testator. Trial in the Court of Common Pleas, before Williams J., upon the general issue.
    The defendant filed in set-off an account for $ 14-50, and offered evidence to prove the same. The plaintiff objected to the allowance of this account; and upon this point it was admitted by the parties, that after the .death of the testator his estate was represented by the executrix to be insolvent ; that the defendant laid before the commissioners of insolvency the claim now in question, together with a further claim of $ 4-34 ; that the executrix did not produce to the commissioners the note now in suit, and the commissioners allowed to the defendant his claim of $ 4-34, and disallowed his other claim. The defendant gave no notice of his intention to prosecute his claim at common law, or of his dissatisfaction with the determination of the commissioners. Afterward the executrix demanded pay ment of the note now in suit. The defendant, thereupon, paid the sum of $ 13-95, and the executrix indorsed this sum and the sum of $ 4-34 upon the note, leaving a balance due thereon of $ 14-50. The defendant then claimed of the executrix the allowance of his account for $ 14-50, now filed in set-off, in ordei to balance the note in full, but the executrix refused to allow it, and this action was prosecuted to recover the balance of the note.
    The counsel for the plaintiffs contended, that these facts and proceedings were a bar to the defendant’s claim, but the judge, being of a different opinion, overruled the objection to the admission of the account, and permitted the same, together with the defendant’s evidence in support of it, to go to the jury who thereupon returned a verdict for the defendant. To this opinion and direction the plaintiff filed exceptions. '
    Eddy, in supp^t of the exceptions,
    said the defendant was not obliged to lay his claim before the commissioners, but having done so and part of it having been allowed and the residuo disallowed, he had no right to contest the matter again ; it was res judicata; and this distinguished the case from M'Donald v. Webster, 2 Mass. R. 498. He cited Bordman v. Smith, 4 Pick. 215 ; 2 Dane’s Abr. 70.
    Loud, contra,
    
    relied on the case of M'Donald v. Webster.
    
   The Court

held, that the decision of the commissioners was not conclusive as to the defendant’s right to file his claim in set-off, and the judgment of the Court of Common Pleas was affirmed. 
      
       See Revised Stat. c. 96, § 12,13.
     