
    Same Case—On a Re-hearing.
    If a creditor of one who has made a cessio borwnim, who had proved a claim at the time-of the first distribution of the effects of the insolvent, and received a dividend out of the fends then in the hands of the syndic, is not debarred thereby from proving, on a subsequent distribution, another and a distinct claim existing at the time of the failure, itc follows, as a consequence, that new grounds- of opposition may be set up against a claim allowed on a previous tableau, whenever a new fund comes into the hands of the syndicfor distribution.
   The judgment of the court (Eustis, C. J. absent,) was pronounced by

Rost, J.

The appeal taken by the heirs of Hull in this case, was. detached from the record, and was not brought to our notice till after the judgment had-been rendered. Upon discovering this error, we granted a re-hearing a&to them and their opposition to the claim of Mrs. West, is now before us, on the pleas off payment on one side, and of res judicata on the other.

On the first tableau of distribution filed, the claim of Mrs. West, and. her right of preference, were contested by these opponents, on the ground that her mortgage, not having been recorded as required by the act of. 1&13, her claim was-absolutely null and void. We disallowed the right of mortgage,, but recognized the claim as an ordinary debt, to the amount of $5,400. West v. Creditors, 1 Annual, 365.

It appears that, at the time this opposition was moA&rMrs. West had.received: the sum of $4,149 40, from the assignee of her husband, after his failure, in 1842. The opponents now plead this payment, and insist that Mrs. West has. no claim to any portion of the fund in hand.

In the appeals taken from the judgments rendered on the oppositions to the-second tableau of distribution filed by the syndic, we held that a creditor, who had proved a claim at the time of the first distribution, and received a dividend out of the fund then in the hands of the syndic, was not debarred' thereby from the right of proving, on a subsequent distribution, another and a distinct claim, existing at the time of the failure.

We came to this conclusion by analogies drawn from the practice established under the bankrupt laws of England and of the United States, giving effect to the familiar rule that, where there is doubt upon a question of res judicata, the party against whom the plea is set up should have the benefit of that doubt. West v. Creditors, 3 Annual, 532.

If, in subsequent distributions, creditors are permitted to set up new claims which existed when the first distribution was made, it follows that new grounds of opposition may be set up against then1 claims, whenever a new fund comes into the hands of the syndic for distribution.

It is proved that Mrs. West has received $4,149 40, on her claim. That amount must be deducted from the sum of $5,400, for which she is placed on the tableau.

It is therefore ordered that the judgment in this case be amended, so as to sustain the opposition of the heirs of Hull against Mrs. West, except for the sum of $1,251 60, for the amount of which Mrs. West is to be classed in the tableau as an ordinary creditor.

It is farther ordered that the judgment, as amended, be .affirmed.  