The claim presented to the commissioners of insolvency was not supported by the affidavit of the claimant, nor that of any person “ cognizant thereof.” The statute is imperative. Claims “ must ” be supported by the affidavit of either one or the other. R. S., c. G6, § 5. Clasou, who made the affidavit in this case, did not make it as a person himself cognizant of the claim, but only as representing a person who was.
The claim presented to the commissioners contained two items, “To note dated May 28, 1897, $800 with interest; To note dated October 7, 1898, $400 with interest.” There were other items not material to notice, as they were disallowed by the jury. This specification of claim clearly implied that the notes were those of defendant’s intestate, held by the claimant. No evidence was presented to the commissioners, and they disallowed the claim. On trial after attempted appeal, no notes of defendant’s intestate were produced or claimed, but the plaintiff relied upon an alleged agreement of the deceased, which she was allowed to prove, to pay her bills till they were married if she would remain in Farmingdalc, and not remove to Boston, and that she acted upon that agreement. The eight hundred dollar note was her own note for a loan negotiated by the deceased, and the proceeds were applied by her to her bills. The four hundred dollar note was also her own note for a loan, of which two hundred and seventy-one dollars was applied to her bills. This claim thus admitted to be proved was not in fact or in substance the claim presented to the commissioners — nor one of which the defendant, as representative of the estate of the deceased, was apprised or could infer from the claim presented to them.
After the commissioners made their report to the probate court, the plaintiff entered an appeal from “the decree” of the probate judge, and not an appeal from the decision of the commissioners, and filed a bond as for an appeal from “ the order and decree of the judge of probate.” None of these proceedings were in accordance with the statute. R. S., c. 66, § 12, allows an appeal “from the decision of the commissioners.” No such appeal was claimed. Upon *454the report of the commissioners no decree is required to be made by the judge of probate from which an appeal can be taken. The appeal from the decision of the commissioners is to a common law tribunal, and not to the supreme court of probate, as on appeal from the decree of the judge of probate. Merrill v. Crossman, 68 Maine, 412.
On appeal from the decree of the commissioners, the statute provides that an action for money had and received shall be brought and the creditor must “ annex to his writ a schedule of his claims, stating the nature of them, or file it with the clerk of the court where the writ is returnable, fourteen days before its return day.” E. S., c. 66, §§ 14-16. The schedule of claims annexed to this writ, so far as necessary to be considered here, was “ for payment of note of May 28, 1897, eight hundred dollars with interest; note dated October 7, 1898, four hundred dollars with interest.” Waiving the variance between the claim presented to the commissioners and that annexed to the writ, the claim made by the evidence on trial was in no sense thé samé or similar to the specification annexed. Nothing in the annexed schedule gave notice to the defendant of the claim actually relied on, but did give notice of another and widely different claim, of which no proof was offered.
From first to last, the proceedings were irregular and not in compliance with law. The true claim was not presented to the commissioners, nor stated in the writ. No appeal was taken from the decision of the commissioners disallowing the claim. The attempted appeal was from a decree never made nor authorized. It was to the supreme court of probate, when it should have been to the common law side of the court.
The evidence of the claim actually made on trial was inadmissible under the pleadings. The attempted appeal was fiot in accordance with the statute and was ineffectual to confer jurisdiction upon the court.
Exceptions sustained.