Mills Olcott, Administrator of Timothy Olcott, against Samuel Morey, 1 Tyl. 198

The Chief Judge delivered the opinion of the Court. The Court see no distinction in the present case between claims allowed or disalloxved by the commissioners. If the administrator elects to institute a suit upon claims in favour of an insolvent estate, the adverse party must not be estopped from such legal defence as would have been available in case the commission of insolvency had not issued.

Even the general bar, in case where the creditor failed to exhibit his claim to the commissioners, could only be pleaded to an action instituted by the creditor, and could not be taken advantage of by the administrator under the general issue in offset to the exclusion of the defendant’s defence.

The Court consider a declaration in set-off, not as a distinct action, but merely a statute provision made in aid of the rules of practice, which might not allow the subject matter of it to be shewn in evidence •under the ordinary issue to the plaintiff’s declaration, consistently with the technise of pleading and prac, tice. It is in its nature the party’s defence, of which the Court will not suffer him to be deprived.

Smith, Judge, Though I am in opinion with the Chief Justice in supporting the verdipt, yet I am ra~ Uier inclined to consider, that the exhibition of his claim to the commissioners of an insolvent estate is necessary to the taking the creditor out of the bar in the 83d

section of the statute. Verdict of the Jury affirmed.