The instruction relating to the effect of the report of the commissioners is clearly right.
The report of commissioners on exorbitant claims and that of commissioners on claims against insolvent estates, not appealed from, are governed by different statutes.
Prior to 1870, claims against insolvent estates disallowed without appeal taken, were forever barred; and they could neither be recovered by suit, nor filed in set-off, except in case of further assets after distribution. JR. S. of 1857, c. 66, § 18. But the *459legislature of that year changed the law so that while now, as before, a disallowed claim cannot be the subject of a suit, it may be filed and proved in set-off, to the amount only of the claim which the estate may establish against the claimant. St. 1870, c. 113, § 11, incorporated into R. S., c. 66, § 18. In other words, it now seems that if the claimant would obtain his dividend from an insolvent estate, he must try out his claim disallowed by the commissioners and establish it before a jury on appeal. If, however, he does not care to make a substantive claim against the estate, but simply desires to use it as a protection against any one which the estate may set up against him, and the commissioners reject his, he need not be at the trouble and expense of an appeal, but may bide his time until sued by the estate and then file his claim in set-off and have its merits tried by the jury.
On the other hand the commissioners on exorbitant claims are appointed under R. S., c. 64, § 51. They deal with claims against solvent estates. Their duty is “to determine whether any and what amount shall be allowed on each claim and report,” &c. And the statute expressly and peremptorily declares that “their report shall be final, saving the right of appeal.” If no appeal is taken to their report, then every item passed upon by them becomes res adjudícala unless we legislate another exception to the finality of their report.
It will be observed that while nine sections of the statute governing proceedings in insolvent estates are expressly made applicable to exorbitant claims and proceedings thereon, (R. S,. c. 64, § 51), § 18 relating to disallowed claims being filed in set-off is not one of them. R. S., c. 66, § 18.
2. Neither do we entertain any doubt of the correctness of the “addition” to the defendant’s request for instruction. The second rule invoked by the defendant’s counsel, viz: “that the construction is to be taken most unfavorably against the party whose acts or language raises the doubt,” is not applicable. (1) For the request is based on an agreement made by “the attorneys” without disclosing which used the language; and (2) by referring to the former report which (by the terms of the bill of exceptions) makes a part of this case, we find it was the defendant’s proposi*460tion, assented to by the plaintiff, which constituted the agreement.
The defendant has had two verdicts against him ; and we see no cause for giving him another trial.
Exceptions overruled.
Appleton, C. J., Dickerson, Daneorth, Peters and Libbey, JJ., concurred.