¶1The opinion of the Court was delivered by
¶2Where estates are represented and decreed to be insolvent, favored claims, of which that of the plaintiff is one, are to be paid, as if the estate were solvent, if sufficient for that purpose; as was true in the case before us. It is manifest from the statute of 1821, c. 51, § 25, that the commissioners of insolvency are required to pass only upon the claims of such creditors, as are entitled to a pro rata distribution of what may remain, after the preferred claims shall have been paid and satisfied. That section provides, that from the aggregate of the assets, the favored claims shall first be deducted, and the residue rateably distributed among the *265creditors, whose claims may have been allowed by the commissioners. It is very clearly declucible, that their report was not intended to embrace the preferred claims. If these are, by just and fair implication, excluded by law from their consideration, the warrant of the Judge could confer no such power.
¶3The jury have found, that the plaintiff’s account was not submitted to the commissioners, by his direction, privity or assent; and it was not a matter, which was legally submitted to their determination. The plaintiff then was under no obligation to give the notice, required by the section of the law, before referred to, that he should prosecute his claim at common law. There having been sufficient estate, to satisfy the preferred claims in Ml, the defendant has not fully administered according to law, in a manner to sustain his defence, by showing the estate exhausted by those, who were entitled only to be paid pro rata, after the favored claims had been satisfied. What the plaintiff has received, is to be allowed to the defendant; but as it was not payment in full, lie is entitled to the balance.
¶4Judgment on the verdict.