
    John Ellsworth versus Susanna Thayer, Administratrix.
    The report of the commissioners on an estate represented insolvent, is the proper evidence of the rejection of a claim laid before them; and an action brought on a rejected claim before they have made their report, cannot be sustained.
    This was assumpsit upon a promissory note and an account annexed. The writ bore date of August 10th, 1825, and was served on the 15th, it being returnable to the Court of Common Pleas to be held at Worcester on the 29th.
    The defendant pleaded, that at a probate court held on the 11th of January, 1825, the estate of the intestate was represented and appeared to be insolvent, and that the judge of probate appointed commissioners of insolvency, and allowed the term of six months to the creditors of the deceased to bring in and prove their claims before the commissioners; and that on the 16th of August, 1825, and not before, the commissioners, at a probate court, presented to the judge a list of the claims that had been laid before them, with the sum by them allowed on each, which report was then accepted and ordered to be filed.
    
      
      Oct. 5th.
    
    
      Oct. 9th.
    
    The plaintiff replied, that at a meeting of the commissioners, viz. on the first of June, 1825, he laid before them the demands declared on, and they rejected the whole of them; that within twenty days after the report of the commissioners was made, viz. on the 20th of August, 1825, he gave notice in writing at the probate office, that he should prosecute a suit at common law against the administratrix for the recovery of his claims ; and that he did bring and prosecute such suit as soon after the making of the report and the giving of the notice, as he could do. To this there was a general demurrer.
    By St. 1784, c. 2, it is provided, “that notwithstanding the report of any commissioners, any creditor, whose claim is wholly or in part rejected, may have the same determined at the common law, in case he shall give notice thereof in writing at the probate office, within twenty days after-such report shall be made, and bring and prosecute his action as soon as may be —and that “no action brought against any executor or administrator after the estate shall be represented insolvent, shall be sustainedexcept for certain classes of debts not comprehending the claims in question.
    
      J. Mams, in support of the demurrer,
    1. The action was brought prematurely, for until the commissioners made their report, it could not appear by legal evidence, whether they had allowed or rejected the plaintiff’s claims. 2. The replication is bad, because in saying that the suit was brought after the report was made, it contradicts the record. Commonwealth v. Churchill, 5 Mass. R. 182.
    Hoar, for the plaintiff.
    
      
       See Revised Stat. c. 68.
    
    
      
       The law will not suffer an averment against a record, or against its obvious import. See Whiting v. Cochran, 9 Mass. R. 532; Hardy v. Call, 16 Mass. R. 532; per Williams J., 8 Connect. R. 74.
      But facts which need not and do not appear by the record, if they do not contradict it, may be proved by other than record evidence. Standish v Parker, 2 Pick. (2d ed.) 22, n. (3).
    
   Per Curiam.

The allegations m the replication appear by the record not to be truefor the action was commenced before the commissioners made a report, and before the notice was given. It is argued that as the action was brought after the claims were rejected, it is sufficient. But that fact is not shown by the record. It should appear that the rejection was before the 10th of August, when the writ was sued out. The time however when these claims were rejected does not appear, and no action could be legally brought until they had been rejected.

Replication adjudged bad.  