This is a petition for a writ of prohibition to the judge of probate of this county, prohibiting any further proceedings on the petition of Charles A. Hebard, an insolvent debtor, under the insolvent acts of this Commonwealth. It appears that on a prior petition of the said Hebard, such proceedings had been had before his second petition, that his application for a discharge from his debts, on an appeal to this court, and on a hearing, had been refused. Upon these, and other facts alleged and admitted by the demurrer, and by the answer of the judge of probate, we are of opinion that there are not sufficient facts alleged to justify an absolute prohibition as prayed for, although a conditional or qualified prohibition may be well warranted.
1. In the first place, we are of opinion that a second commission ought not to have been granted, unless it was averred and shown that the insolvent debtor owed debts to the amount of $200, not including in the computation any debts proveable under the first commission. The adjudication, in respect to the refusal to grant the application of the insolvent for a discharge from his debts, is conclusive, and is not open to readjudication under a new application; and if in fact there were not new debts amounting to $200, an absolute prohibition ought to issue, to stay all further proceedings.
2. On the other hand, if new debts to that amount were proved to the satisfaction of the judge of probate, the proceedings under the second petition would be regular. But in such case, no discharge is to be granted without excepting from its operation all debts which were proveable under the first commission, unless the creditors, whose claims were thus proveable, *132should elect to come in and prove their debts under the second commission.
3. Whether such creditors have a right to prove • their debts under the second commission, is a question we are not now called upon to decide. But it seems that they have a right to elect so to do. Their claims seem to rest on the same footing as fiduciary claims under the late bankrupt law, which have been allowed to be proved under a commission of bankruptcy, the creditors electing so to do, although otherwise their debts would not have been barred by a certificate of discharge regularly granted. 7 Met. 154, 155, 430. It would seem, therefore, that a like right of election may be allowed in the present case. If, however, such creditors do come in and prove their claims under the second commission, they will be barred by a discharge regularly granted under that commission. Otherwise, unquestionably, they will not be barred, as the validity of their debts, and the remedy to recover them, cannot be affected by the proceedings under the second commission, unless they elect to come in and to become parties thereto.
■Qualified prohibition granted.