
    JANUARY TERM, 1846.
    David Harrison, administrator of Joseph Harrison, deceased, vs. George W. Motz et al.
    Where a commission of insolvency has been regularly opened and closed, it will not at a subsequent term of the court be re-opened, even at the instance of a judgment creditor whose judgment bears date since the closing of the commission.
    The estate of H. was declared insolvent in 1839; commissioners of insolvency thereon were appointed and their commission from time to time extended until September, 1841, whenit was finally closed by an allowance of their report; M. in June, 1843, petitioned the probate court to re-open the commission and admit his claim, which was reduced to judgment in 1842, against the administration: Held that M.’s application came too late, he should have presented the claim upon which his judgment was founded to the commissioners for allowance, failing which, his claim was barred.
    In error from the probate court of Warren county, Hon. Benjamin Springer, judge.
    The record in this case, presents this state of fact.:
    On the 26th of November, 1838, letters of administration were granted to Levi E. Gibson, upon the estate of Joseph Harrison, deceased.
    At the December term, 1839, the estate was declared insolvent, and William Everett, John F. Pierson, and Ferdinand Sims, were appointed commissioners of insolvency, with instructions to publish their appointment for six months.
    At the November term, 1840, the commission of insolvency was extended and same commissioners re-appointed, to be kept open for three months.
    At the February term, 1841, Levi E. Gibson was removed from the administration of the estate, and David Harrison, the plaintiff in error, appointed administrator de bonis non.
    
    At the March term, 1841, the commission of insolvency was again extended and the same commissioners appointed with instructions to keep the commission open for six months.
    At the September term, 1841, the commissioners make their report, which was “ received, examined, allowed, and ordered to be recorded,” by the court. They reportin the same paper, and at the same time, all that they have done during the various times the commission was opened. They allowed nearly $20,000 of claims.
    At the June term, 1843, George W. Motz and George ■ W. Henderson, the defendants in error, filed their petition, stating that they owned a judgment, obtained in the Warren circuit court, at the October term, 1842, against Joseph Harrison’s estate, for $717; that as appears of record, the estate is insolvent and that the full time during which the commission might be open, not having expired, they pray to have it re-opened; and the court at the same term again ordered it to be re-opened for three months; to which order the administrator de bonis non, objected because the commission was finally closed, and the court had no power over it; the court overruled his objection and he filed exceptions.
    The court appointed Henry Green, Richards Barnett and Isaac H. Hay, the new commissioners, none of whom had acted on the previous commission.
    At the September term, 1843, the commissioners last appointed, made their report in favor of Motz and Henderson for $717; upon a certificate of a judgment in the Warren circuit court, rendered at its October term, 1842. The court received, allowed, and ordered this last report to be recorded.
    The administrator, de bonis non, takes the case to this court by writ of error.
    
      Smedes and Marshall, for plaintiff in error.
    It is contended on the part of the plaintiff, that the probate court had no power, after the report-of the commissioners of insolvency was filed, allowed in that court, and the term at which the allowance was made had passed, to re-open the commission ; and having no power to re-open it, the report of commissioners appointed under ail order which the court had no right to grant, was improperly allowed.
    The decision of this case turns entirely upon the construction of the statutes regulating the management of insolvent estates ; we think thebe can be no doubt whatever about the meaning Of the law. It is to be fouhd in How. & Hutch, page 409, sec. 80, and page 411, sec. 84.
    The statute of sec. 80, provides that if the estate appear to the court to be insolvent, two or more fit persons shall be appointed commissioners, “ with full power to receive and examine all claims of the several creditors of such estate; that six months, and such further time as the circumstances of the case may require, not exceeding eighteen months, shall be allowed by the said court to the creditors for bringing in and proving their claims before the said commissioners; at the end of which limited time, the said commissioners shall make their report and present, on oath, a list of all the claims that shall have been laid before them, with the sums they shall allow on each respective claim, to the said orphan’s court.” The statute proceeds then to provide for immediate distribution of the estate on the coming in of the report, “ among the creditors who shall have made out their claims with the commissioners, as aforesaid, in proportion to the sums unto them respectively due and owing.” The statute then provides for the proof of claims rejected by the commissioners either by referee or by action of law, and concludes ■by saying: “ And if any creditor shall not make out his claim with the commissioners, within the time of their commission, or before referees or at common law, in the manner this act provides, he shall be forever barred of his debt or demand,” unless he find other property not inventoried, &c.
    Upon this section of the statute, if it stood alone, there could be no question; there is power given to the court to appoint a commission for a given time; in that time they are to receive and audit claims against the insolvent estate, and at the end of that time report, and if any creditor, not within the exceptions, fails to make out his claim in that limited period, in the language of the statute, “ he shall be forever barred of his debt or demand.” There was no power granted to re-open the commission, or appoint new commissioners in case they failed to act. This difficulty occurring to the legislature, they added sec. 84 to the statute, which provides that in case the commissioners “shall fail to make their final report within the time limited by law, it shall be the duty of such orphan’s court to make new appointments, or extend the time for the said commissioners to receive claims against such estate and report thereon, to such time as shall to said court seem reasonable and just.”
    This is all the legislation on the subject, and it seems to us that it must be at once apparent, that upon a comparison of the facts of this case, and the law applicable to it, that the probate court overstepped its powers in re-opening the commission of insolvency the last time, so as to let in Motz and Henderson’s claim.
    At the December term, 1839, the estate is declared insolvent, and commissioners appointed, and six months allowed to take proof of claims in; the six months expire, they make no report, and the court, in the discretion given to it by section eighty-four, “extend the time” at the November term, 1840, for three months more. — • the three months elapse without a report, and the gourt, still within the limits of its discretion, extend the time at its March term, 1841, for six months longer. This time, however, the full report of all the sittings of the commissioners comes in, is received by the court, examined, found to be correct, allowed, and ordered to be recorded; all of which is done at the September term, 1841, nearly two years after the estate was declared insolvent, and the first commission appointed.
    Here was an end of the matter, so far as the power of the probate court over the commission of insolvency extended; the commissioners had made their final report, after repeated extensions of time and a lapse of more than eighteen months, which is allowed by the court without an objection, and “ any creditor who had not made out his claim with the commissioners, within-the time of their commission, was forever barred of his debt or demand.”
    Motz and Henderson come, unfortunately for them, directly within the words and meaning of this statute, and their debt is “ barred.”
    But the probate judge thought otherwise; and at the June term, 1843, twenty-one terms of the court having intervened since the final report of the commissioners had been received and allowed, ordered this commission to be for the fourth time opened, at the petition of Motz and Henderson, to permit th.em to have their already dead, extinguished and barred claim, revived by means of a new set of commissioners.
    The new commissioners allowed the claim, and unless the action of the probate court is arrested by this court, Messrs. 'Motz and Henderson will receive a dividend out of an estate against which they may once have had a claim, but which, by their own laches, has been forfeited and lost.
    We are not, however, without an adjudication of this court upon this subject, delivered at its October sitting, which, were there any question about the matter, would settle it at once in favor of the position assumed by the administrator.
    We refer to the case of Merritt J. Smith v. T. V. Berry, Adm’r. 1 S. & M. 321. That case, so far as the action of the creditor is concerned, is precisely similar to this. He waited until the commission of insolvency was closed before he made application to have other commissioners appointed. In that Case, the report of the commissioners was allowed by the court in June, 1841, and in February, 1842, Smith applied to the court for a new commission, which the court refused to grant, and properly, as this court held. In this case, the commissioners made their report in September, 1841, and in June, 1843, after a lapse of more than twice the period that had occurred in the other case,' the creditors make their application to have the commission re-opened, and the court grants their application, most improperly, as we think this court will now hold.
    In the case of Smith v. Berry, this court expressly decides, that the “probate court cannot, at a term subsequent to that at which the report of commissioners of insolvency is received and confirmed, set it aside, unless for some reason the previous order had been null and void.” It is then final and conclusive as to the world.
    
      We see nothing in this record that will, in any degree, tend to shake the decision of the court in the case just cited, and we must therefore consider that conclusive of the present.
    
      E. Mason¡ for defendant in error.
    The plaintiff contends that it was error on the part of the probate judge. After the report of the commissioners of insolvency had been allowed, and filed, and the term at which the allowance was made, passed, to re-open the commission, and having no power to re-open it, the report of the commissioners appointed under an order which the court had no right to make, was improperly allowed.
    The decision of this case depends upon the construction of the statutes respecting decedents’ estates, and upon the powers of the probate judge in the premises as set out in the record. Those statutes will be found in the 80th section of the law relative to decedents’ estates, How. & Hutch. 409; and in the 84th section of the same act, page 411.
    From these provisions of the law, are we to fix the period of eighteen months, to- be computed from the first appointment of the commissioners, or to be calculated from the time the commission has actually been open 1 If the first, then the report made, as set out in the second, is in contravention of its provisions. At the December term, 1839, the commissioners are first appointed for. six months, they make no report; at November term, 1840, commissioners are re-appointed for three months, their appointment expired at February term, 1841, and they make no report, at that term the administrator is removed and a new one appointed.
    
      March Term, 1841, the commission is re-opened, and the commissioners re-appointed for six months. Now if we compute the time of eighteen months, provided for in the 80th section, to be from the date of the first appointment, then this last commission could only have been kept open for three months from the March term, 1841, but they were instructed to keep the commission open six months, to wit: until the September term 1841. At the September term, they make a report, not only of what 
      they had done, but of the proceedings, and a report for the commissioners appointed at the November term, 1S40, whose commission and authority had expired in February, 1841, a month before they were appointed, and if it is contended that the period of eighteen months is to be computed from the date of the first appointment, then from December, 1839, to September, 1841, when the report was made, makes tiventy-one months. If, on the other hand, the time of the limit of eighteen months was meant to embrace the actual session of the commissioners, then it had only been open for fifteen months. If the first be the construction, then the whole report must have been improperly allowed ; having been made by commissioners appointed under an order which the court had no right to make, and having appointed commissioners to sit longer than the period of eighteen months, and that, when they could not have been appointed under the 84th section of the law; the contingency contemplated by that section, not having arisen when they were appointed, to wit, in March, 1841. If such, then, be the construction to be given this law, then in June, 1841, the eighteen inonths or the time limited by law had expired, and no report was made, when, under the provisions of the 84th section, we could claim a new commission, or such extension of the time as might seem “reasonable and just; and hence the decision of the court below was correct discretion of the judge. From the reason of the law, which intended to give to creditors time to present their claims, and prove them; and that in some instances, and with some estates, a greater, and some a less time might be requisite for that purpose. We would construe the limit of eighteen months, to be computed of the actual session of the commission, and by the 80th section; “that when commissioners are appointed, six months and such further time as the circumstances of the case may require, shall be allowed by the court to the creditors for bringing in and proving their claims before said commissioners;” a discretion is left with the judge, as to what time shall be given, as the circumstances of the case may require.
    In thus construing this law in the one way or the .other, it is a power at last left at the sound discretion of the judge, to say what time, shall within certain limits be allowed the creditors of insolvent esta'tes to prove their claims as provided; and upon the presentation of the petition of Motz and Henderson, and the proofs and facts shown by them, this discretion as to the circumstances of the case, was to be exercised, the party appealing, has put nothing on the record, to show the facts and circumstances, upon which the judge based his decision; or to’ show that other proofs or circumstances, good and sufficient, were not before him; and, as heretofore decided, “ this court will presume the acts of a court, of competent jurisdiction, to be correct; the plaintiff appears attacking the decision of a court of competent jurisdiction, and must show the error, if such existyet the record does not set out, what testimony was before the judge, or what the circumstances of the case proved before him, nor show that he had not abundant proofs in support of the petition of Motz and Henderson, and an appellate court will deem the decision of the probate court to be correct.
    It might well be questioned, if the party has aright to appear here at all, and ask a revision of the judgment of the probate court in the present case. The judge of that court, is, from the nature of his duties and office, invested with the exercise of many powers, left to his sound discretion, as in the very provision of the 80th section of the law before cited, “ to judge from the circumstances of the case ” as to the time necessary for the creditors to prove their claims. In a matter in which a judge is to be governed by a sound discretion, his decision in such case is not a subject of appeal. 3 Hawks, 75. The case now before the court, differs from the case of Smith v. Berry, decided at a former term of this court; nor do we conceive that the decision in that case is at all applicable to this, either from tlie facts or the principles; in that case, commissioners had been appointed upon an insolvent estate, and made a report which was received; at a subsequent term, Smith, a creditor, comes in, having summoned the administrator to show cause why the report of the commissioners should not be set aside, and new commissioners appointed to re-state the account ; does not charge error or fraud in the report made, but simply that his (Smith’s) claim might be included. The probate court dismissed his petition ; afterwards he prayed that his claim should be submitted to referees; under the provision in the 80th section for the adjustment of claims, wholly or in part rejected; which prayer the court also refused, because his case did not come within that provision. And the court in that case say, “ that the party attacking the decision of a court of competent jurisdiction, must show error in the proceedings of such court; or the decision will be presumed to be correct, and the court could not set aside a report made and confirmed at a former session, unless for some reason the previous order had been null and void, and the party attacking such decision, must show such error on the record. The petition of the party now before the court, did not ask to set aside a former report or order, but only asked an examination of a claim, by commissioners, which was then a judgment at law against the administrator, and which judgment had been rendered since the report of the commissioners had been made, and which claim must have been in suit before the estate in question was returned insolvent, or by law the suit could not have been instituted. In that suit so pending, and so decided, the administrator had the notice, and opportunity to defend himself and the estate, had the claim been an unjust one, and it was presented to the commissioners and the judge as a judgment obtained against the administrator. Here was the case presented to the judge, as before stated, addressed to his discretion, under the law; and his decision made in the premises ; the party is here attacking, yet his record shows none of the evidence, facts, or circumstances which were adduced. In Stetson v. Bass, 9 Pick. 29, the court say that the ordinary mode by writ of error, or motion for new trial, does not hold with the judge of a probate court, but errors or mistakes must be reached by petition, and much is left and addressed therein, from the peculiar character of the-court, to the sound discretion of the judge. In the second, there is no showing that any distribution had been made or proposed, no final settlement; nor does this appeal emanate from any creditor of the estate, but it is on the part of the administrator, who seeks to avoid a judgment against himself and cost; as to that his record shows no evidence adduced anywhere, or at any time to the probate judge, that the claim was illegal, unjust, or had been paid.
    But besides the reasons before urged, why the decision of the court below should be sustained; we contend that even without the action of the commissioners, this claim is a valid one against the estate, and that the provisions of the act above cited and relied upon by appellant, do not apply to the case of a judgment obtained against an insolvent estate. At the December term, 1839, of the probate court, the estate was returned insolvent; in October, 1842, the judgment in favor of Motz and Henderson was rendered. The 80th section of the act cited by the appellants, and relied on by them, providing the means of examining claims against insolvent estates, also provides “tha.t no suit or action shall be commenced or sustained against the administrator after the estate has been returned insolvent,” a mode having been in the previous part of the same section provided for examining and allowing claims. But, “in case a suit shall, be pending against an administrator or executor at the time the. estate is declared insolvent, the same shall not abate or be dismissed, but be prosecuted to judgment, and such judgment shall, and may be filed as a claim against the estate of such testator or intestate.” How. & Hutch. 415. The administrator, when suit is already pending, having full means and opportunity to contest the claim, and thus when such suit may be pending, it is to the same end, that the examination by the commissioners would be, where no suit could be commenced; such is the case at bar, suit was pending when the estate was declared insolvent, and as provided by the 98th section, was prosecuted to judgment, that judgment was presented, and has been filed, and must, under that provision, be held a good and valid claim against the estate.
   PeR Curiam.

It seems that the estate of Joseph Harrison, deceased, was reported insolvent. Commissioners of insolvency were appointed, and their commission was extended from time to time, until March term, 1841, of the probate court, when the commission was re-opened for six months. At September, 1841, the commissioners made their report, containing an account of the several claims which had been presented, with the amount allowed on each claim. The report was received, allowed, and ordered to be recorded. At the June term, 1843, of the court, the defendants in error presented a petition, stating that they were the holders and owners of a judgment for the sum of >$717, .rendered at the October term, 1842, of the circuit court of Warren county, against the administrator of Joseph Harrison; that they had never had an opportunity to present their claim ito the commissioners of insolvency, and therefore prayed that commissioners might be appointed to act upon the same. The court granted the petition and appointed commissioners, to which the. administrator excepted, and when the last commissioners reported, he brought his writ of error.

Commissioners of insolvency were first appointed at November term, 1838, and by several orders of court the commission was'kept open until September term, 1841. When the report was received and recorded, it became the judgment of the court, and settled the rights of the several claimants. By the eightieth section of the probate court law, the court is authorized to allow creditors six months, or such further time as may be necessary, not exceeding eighteen months, to present their claims. This time must be computed from the time the commission is opened of course. If the commissioners fail to make their report within -the limited time, the eighty-fourth section authorizes, the court to make new appointments, or to extend the time. The time was extended in this instance, so as to cover a period of near three years, and it was the duty of all creditors to present their claims before the final report. If any creditor fail to make out his claim whilst the commission is open, it is barred by the eightieth section. It seems that the judgment of the defendants in error was not obtained until after the commission was closed. The record does not inform us how the suit happened to be prosecuted against an insolvent estate. It was the duty of the defendants in error to have presented the claim on which the judgment was founded. Indeed, no reason is shown why it was not done. The report of the commissioners was a final adjustment of the estate. If the court could open the commission under such circumstances as this record presents, litigation would be interminable. Addison v. Eldridge, 1 S. & M. 510.

Judgment reversed.  