
    Benjamin Freeman versus Benjamin Ward et al., Administrators.
    Presenting a claim to the commissioners of insolvency on the estate of a deceased person, for allowance, is a prosecuting of such claim, within the meaning of St, 1833, c, 189, giving a remedy where the party is prevented, through accident or mistake, from “ prosecuting ” his claim to the commissioners.
    Freeman having a claim against the estate of Benjamin Ward, deceased, intestate, which had been represented to be insolvent, presented it to the administrators, and likewise to the commissioners of insolvency on the estate for allowance, but it was disallowed by the commissioners. Freeman had no notice that it was objected to and disallowed, until it was too late to commence a suit at common law, pursuant to St. 1784, c. 2, and he therefore presented a petition to the judge of probate, under St. 1833, c. 189, representing that through mistake and accident he had been “ prevented from prosecuting his claim to the commissioners of insolvency,” and that the estate was solvent, and praying that the judge would authorize the administrators to pay the claim, and, in case of their refusal, would authorize the petitioner to commence and prosecute a suit at common law. The judge decreed that the petition be dismissed on the ground of want of jurisdiction, and from this decision the petitioner appealed to this Court.
    Miller, for the appellant.
    Eddy, for the appellees.
   But it was resolved, that presenting the claim to the commissioners was prosecuting it, and consequently that the case did not come within the statute of 1833.. And the Court said, that the appellant had a remedy under St. 1816, c. 62, (Revised Slat. c. 68, § 13.)

Decree of the judge of probad affirmed.  