
    Pickering Dodge and Another versus Ebenezer Breed, Administrator.
    Commissioners appointed by the Judge of Probate to receive and examine the claims of creditors of the estates of persons deceased, represented insolvent, should cast interest on all claims allowed by them, from the death of the insolvent debtor to the time of making their report; whether they expressly bear interest or not.
    When a creditor of such an estate, whose claim is wholly or in part rejected by the commissioners, shall prosecute his action at common law, and shall not, in such action, recover a greater sum than was allowed him by. the commissioners, the executor or administrator of the estate shall recover his costs of the suit against such creditor, f f
    t Guild et al. vs. Hale, 15 Mass. Rep. 458.
    [j: See Rev. Stat. Chap. 68, § 12) Chap. 83, § 47. — Ed»]
    The estate of David Woodward, the defendant’s intestate, having been represented insolvent, the plaintiffs presented their claim before the commissioners appointed by the Judge of Probate to receive and examine the several claims on the said estate. The plaintiffs claimed a sum of money which they had advanced to the said Woodward in his lifetime ; and also special damages on account of the said Woodward’s not having invested it in merchandise at Canton in China, according to his undertaking and agreement. The commissioners allowed the claim for the principal sum, with lawful interest; but they rejected the claim for special damages. The plaintiffs gave notice, Recording to the statute of 1784, c. 2, and thereupon brought this * action to recover the said special damages. On a case stated by the parties, the Court determined that the commissioners did right in rejecting that part of the claim.
    
      Saltonstall, for the plaintiffs,
    also contended, that they were entitled to a further sum for interest than had been allowed by the commissioners.
    On this point it appeared, that the said Woodward died at Madras, in India, on the 3d of October, 1812, and notice of his death was received in this country on the 19th of April, 1813. The commissioners, in their report, allowed no interest on any demand or contract which did not, in express terms, bear interest; and upon those bearing interest, of which that of the plaintiffs was one, they added interest to the said 19th of April, 1813. The commissioners were appointed in June, 1815, and they made their report in February, 1816 ; and it was contended for the plaintiffs, that interest on their demand ought to have been computed up to the last-mentioned day.
   The Court was of opinion that all the creditors of the deceased were entitled to be paid equally, in proportion to the debts due to them at the time of the death of their debtor ; and that, therefore, interest on all demands ought to stop at the time of the death. Or else interest should be allowed on all, whether they expressly bear interest or not, from the time of the death of the party till the report is made. In any other mode, the creditors would not all be paid in proportion to their respective debts,-as required by the statute before mentioned.

When the estate eventually proves insolvent, it makes no difference which of these modes is adopted, as in either case all the creditors would be paid equally. But, as it can never be known with certainty by the commissioners how much the estate will pay, it is always expedient to compute the interest up to the day of making their report; because, if there should be more than sufficient to pay the principal sums due at the death of the party, although not * enough to pay the whole interest, the creditors would be entitled to interest as far as the assets would go.

But the mistake of the commissioners, in this particular, is not injurious to the plaintiffs in this case; but rather beneficial to them ; because, if interest had been computed on all the demands from the time of the death of Woodward, or if.interest on all had stopped at that time, in either case the plaintiffs would have received a smaller proportion out of his estate. ■ The plaintiffs, therefore, are not entitled to recover any further damages on this account ; and, as no objection has been made by the administrator, on the ground that the commissioners had allowed too large a sum to the plaintiffs, judgment is to be entered for the plaintiffs for the same sum that was awarded to them by the commissioners.

Judgment was entered for the sum allowed by the commissioners, m the manner prescribed by the abovemenuoned statute. And the Court, considering that the defendant was the party prevailing" in this case, within the true intent of the statute of 1784, c. 28, ordered a judgment to be entered for the defendant for his costs of this suit  