
    William G. Herring vs. James Wellons, Administrator of Thomas Rhodes, deceased.
    The report of commissioners of insolvency, after it has been received and allowed, will not, at a subsequent term, be opened for any cause, unless the former orders were absolutely null and void.
    H. filed his petition in the probate court, alleging that R. died in 1839 ; that his estate was reported insolvent in August, 1840, and commissioners appointed, who reported in July, 1841; that petitioner in 1843 had become a creditor of R.’s estate, by being compelled to pay a note on which he was surety ; and that the estate was still in the administrator’s hands undistributed, and prayed the commission to be reopened ; held, that H.’s duty was to have paid the note on which he was surety, at an earlier date, in time to lay before the commissioners, or have caused the holder to present it, and save the bar ; having failed in which, his application was too late, and the commission could not be reopened.
    It is not necessary that it appear of record, that the report of the commissioners of insolvency was made under oath ; or that the advertisement of their meeting was made according to the direction of the court; these are matters of evidence for the court below; and in the absence of an affirmative statement in the record that they were not done, this court will presume the law and orders of the court below on the subject to have been fully Oomplied with, and the proper steps taken.
    Appeal from the Carroll probate court; Hon. M. D. Kim-braugh, judge.
    The appellant, William G. Herring, filed in the court of probate of Carroll county, on the 5th of March, 1844, his petition, alleging therein, that on the 22d of March, 1838, he executed, as security for Thomas Rhodes,' a bill single for the sum of $625, payable to James Meek, administrator; that Thomas Rhodes, the principal obligor, died the 2d of November, 1839, and at January term, 1840, James Wellons was appointed administrator on his estate, and yet held the office; that at ¡the August term, 1840, he reported the estate insolvent, and commissioners of insolvency were appointed. That said bill single was never presented for payment or allowance by the|holder, either to the administrator or to the commissioners of insolvency; tha,t at the February term, 1841, it was ordered, that six months from this time be allowed the commissioners to make their report; and that at the July term, 1841, two only of the commissioners filed a paper, which purported to be their report, which did not purport to have been made under oath, and did not- appear of record to have been so made, and was the only one ever filed by them. That it did not appear of record that they ever presented on oath, a list of all claims presented to them, with the sums allowed on each; and that since the July term, 1841, it did not appear of record, what further had been done with that report, nor whether the commissioners of insolvency had been discharged. That it did not appear from the record, that the commissioners ever advertised as the law directs, or in any way gave notice of the times and places of meeting; that neither Rhodes in his lifetime, or Wellons since his death, had paid the bill single, or any part, but that it remained due and unpaid, until the 23d day of December, 1843, when it was paid by appellant, as security, by virtue of a decree rendered against him in the-vice-chancellor’s court; that at that time he paid for the principal and interest on said bill the sum of $874 28, when the bill was given up to him; that Wellons, the administrator, still held the greater portion of the assets, subject to claims of creditors ; that he could not pay the bill sooner because of his great pecuniary embarrassments, and that the administrator, refuses to pay him the sum thus expended for the debt of his intestate.
    The prayer of the petition was, that his claim be referred to commissioners, to examine and allow the same, and for general relief.
    To this petition, the administrator, Wellons, filed his demurrer, and at the hearing it was sustained, and the petition dismissed.
    From which order and decree, the appellant, Herring, prosecuted this appeal.
    
      Sheppard, for appellant.
    The appellant presented his petition to the court of probate, for an allowance of his claim, accruing by the payment of a bond as surety of decedent since his death.
    The petition was dismissed on demurrer, and the following causes were assigned:
    1st. That the bond which he had paid was barred by the statute of limitations of eighteen months.
    2d. That the commission of insolvency had been closed.
    This decree was erroneous. 1st. The surety was liable on the bond, and having paid it, he was then a creditor of the estate. 2d. The bond having been paid after the close of the commission of insolvency, he was not a creditor within the act, and his claim is not barred by it.
    The first point is directly sustained by the opinion of the supreme court of Tennessee, in a case arising upon statutory law, in every respect similar to that of this state. The bar by the statute of limitations had accrued, and the estate had been discharged ; yet the court held that it would constitute no plea for the surety, and having paid the debt, he was allowed to recover the amount against the estate. See Marshall v. Hudson, 9 Yerg. Rep. 62, and case cited from 2 Yerg.; Theobald on Surety, 140 to 149.
    This court has given the same construction to the statute of this state, requiring claims to be presented to the executor or administrator, as was given by the court to the statute of Tennessee, in the case above cited. See Wren v. Span, 1 How. Rep. 115; 1 S. & M. 184.
    The appellant is a just creditor, and his claim having arisen after the close of the commission, cannot be barred by it. This position does not conflict with the case of Smith v. Berry, 1 S. & M. 324, and other cases to the same point decided by this court. In all of these cases, the party seeking the relief was a creditor under the act, who had failed to establish his claim, and was barred by the express provision of the law. The statute can operate only on the claims of creditors existing at the time of the execution of the commission.
    It is a rule founded on reason and justice, and settled by numerous adjudged cases, that no claim is barred by a commission, if it be not provable under it. 5 Barn. & A. 854. A decree or order can only bar or preclude parties, or those who might have been parties. From this view, we consider that the appellant is a fair creditor of the estate, whose claim has not been barred, and the court of probate erred in refusing to allow it.
    Shattuck, for appellee.
    There is no error in the record, for the probate court could justly pursue no other course than to dismiss the petition.
    1st. The petition admits that the administrator at that time had paid part of the creditors, according to the order of the court upon the report of the commissioners of insolvency. Now if the commission is again opened, as the petition prays, who is to lose what has been paid 1 The administrator should not lose it, for he has paid by order of the court.
    The persons to whom it has been paid could not be made to refund it — for they cannot be prejudiced by the proceedings on this petition, they not being parties thereto.
    The creditors not yet paid their pro rata share cannot lose all, for they should share equally with all other creditors of only equal diligence. It would be a strange record of a probate court, which would show the estate of an insolvent debtor divided by order of the court, so as to pay part of the creditors seventy-five cents to the dollar, and to the remainder only twenty-five per cent, of their respective claims. Yet this would inevitably be the record if this petition were to be carried out.
    Again. There is nothing to hinder the balance of the creditors who had proved their claims, from collecting the per cent, allowed them by the probate court from the administrator, after this petition was filed. See H. & H. 410, last part of sec. 80.
    2d. It is submitted, whether the right is not so vested as to be undisturbed by any future decisions, without a direct attack upon that order of the court, (making the creditors parties) to vacate it on the ground of fraud, or by showing that it is absolutely void. In 1 S. & M. this court say, respecting a similar case, “the court could not, at a term subsequent to that on which the report was received and confirmed, have set it aside, unless for some reason the previous order had been null and void.” Smith v. Berry, 1 S. & M. 324. The petition does not say, for it could not truly, that everything was not done according to law; but it says the “record does not show ” everything, which the case above cited shows does not render the proceedings void, or authorize the court to grant the petition. If the record of the probate court, in this matter of receiving the report making an order, &c. is wrong, this court could have reversed it; but the probate court,- at a subsequent term, could not reverse its own order made at a previous term, nor can this court compel that to do so.
    3d. The case cited by Mr. Sheppard, in 9 Yerger, does not apply.
    1st. There is a different phraseology in our statute from the statute of Tennessee. Compare H. & H. 413, sec. 92, with Caruthers & Nicholson, 75, sec. 4. The latter says, all “ creditors ” shall be barred unless, &c. Our statute says, all “ claims ” shall be forever barred unless, &c. That case turned upon the ground that the security was not a creditor until he had paid the debt, and as that was within two years, he was not barred. The case at bar was a “ claim.” It is submitted, that it was as much “a claim” then, as now. Our law says, all “claims” against an estate, not presented to the administrator within eighteen months after advertisement, shall be forever barred.
    This claim was not presented within eighteen months, therefore this claim is barred forever.
    Their statute is a statute of limitations only; ours extinguishes the debt.
    2d. The estate in the case in 9 Yerger, was not reported insolvent. The case at bar is so reported, the commissioners of insolvency have reported, the report is received, the dividend struck, no appeal taken, and part of the money paid according to the order of the court. Certainly such manifest injustice cannot be done as to disturb these proceedings, and especially by petition.
    This court cannot vacate the order of the court, receiving the report and striking a dividend, for that record is not. here to examine; nor can it instruct the probate court to allow the petition, for that would be in fact vacating an order that is not before the court, and therefore nothing can be done but to affirm the judgment of dismission.
   PeR Curiam.

The appellant filed his petition in the probate court of Carroll county, praying his distributive share of the estate of one Rhodes, on which the appellee is administrator. It seems from the petition, that in the year 1838 appellant became security for Rhodes in a promissory note, and in the year 1843 had the money to pay. Rhodes died in 1839, and in January, 1840, administration was granted, and in August following the. estate was reported insolvent, and commissioners appointed. The note never was presented, either to the administrator or .to the commissioners of insolvency. At February term, 1841, a further time of six months was allowed the commissioners to report, and at July term following, two of them filed a paper, which purported to be their report, but it does not appear to have been made under oath, nor does it appear of record that the commissioners ever rendered a list of claims against the estate, with the sums allowed on each. The petition also alleges, that it does not appear whether said commissioners were discharged, or that they ever advertised as the law directs. The petition concludes by averring that the administrator still holds the larger part of the estate, and prays that appellant may be admitted as a creditor, and a new commission opened.

It will be seen from the above facts, that the commission of insolvency was closed at July term, 1841, and the petitioner was^ot a creditor of the estate until 1843. In the case of Channing v. Peck, 6 Howard, 524, we held that a commission of insolvency could not be opened at a term subsequent to that at which the commissioners had made their final report. The same point was also settled in the case of Smith v. Berry, 1 S. & M. 321, and it was there held that the commission would not be opened for any cause, if the former orders of the court were not absolutely null and void. Were the previous orders of the court in this instance void 1 The proceedings are objected to, because it does not appear by the records that the report was made under oath, and because it does not appear that the commissioners reported a list of claims against the estate under oath; and further, that it does not appear by the records of the court, that the commissioners advertised the times and places of their meetings. It does not follow, from anything stated in the petition, that the report was not made on oath. The oath may have been administered in open court. The report was a matter of evidence for the court, and in the absence of any showing to the contrary, we must presume that the court took the proper mode of admitting the report, as the foundation of its judgment. The notices may have been given, or the advertisement made according to the order of the court. It does not follow, because they do not appear of record, that they were not given. The duty of the petitioner was plain enough. He should have paid the claim and presented it himself, or he should have caused it to be presented by the holder. He remained passive, however, until the administrator, by the report, became liable to the creditors for their distributive shares. His application is entirely too late. The administrator may still hold part of the property, but he is liable, by the report of the commissioners and the decree of the court, to other creditors.

Judgment affirmed.  