The defendant in this case pleaded seven pleas. Demurrers were sustained to the 2d, 4th, 6th, and 7th pleas. The sustaining of the demurrers!to the 2d, 4th, and 6th pleas is assigned for error:; ■ There- is no assignment as error of the sustaining the demurrer:to the 7th plea-. The assignments of error, therefore, render it necessary for us to pass upon the sufficiency of the'2d, 4th, and 6th pleas, but not of the 7th. . -
The 2d plea avers, that the claim sued upon was- not presented to the defendant, nor filed in the probate Court, before the commencement of the suit. This plea-‘tints *558clearly bad. It does not follow that the claim is within the statute of non-claim, because it was not presented before the commencement of the suit. The suit may have been commenced within less than eighteen months, and was in fact commenced within less than twelve months from the grant of administration.
The 4th plea avers the omission to file the plaintiff’s claim within six months after the decree of insolvency. By a comparison of the date of the report and decree of insolvency, as averred in the plea, with the date of the institution of the suit, it appears that the suit was pending before the report and decree of insolvency. The claims which the statute designed should be filed in the probate court, are those which are liable to contestation in that court. The claims required to be filed in the probate court may, in that tribunal, be contested with all the formality of proceeding incident to a regular suit, and, if not contested, ultimately acquire the force of a judgment. That claims in suit when the estate is declared insolvent are not intended to be classed with the claims required to be filed, is shown by the fact that another section of the statute provides for the continuance of pcuding suits, and evidently contemplates that the claims prosecuted in such suits shall be contested, and rejected or established, in the tribunal which has jurisdiction of them at the time of the decree of insolvency. The only construction of the statute, which harmonizes its provisions, is that which exempts claims sued upon at the date of the report of insolvency from the necessity of filing in the probate court within six months, and leaves such pending suits unaffected, except to prohibit the issue of execution, and to require a transcript of the judgment to be filed, so that it may take its pro-rata share. For these reasons, the -writer of this opinion concludes, that the omission to file the claims sued upon in the probate court, within six months, was no defense to this action, and that the demurrer was properly sustained to the fourth plea. Judge Stone concurs in the conclusion expressed, but not in the reasoning by which it is attained.
It is unnecessary for us to consider with particularity *559the sufficiency of the 6th plea. It was insufficient, for reasons which are suggested in the case of McDougald’s Adm’r v. Rutherford, at the last term. ;, , ,
The 3d plea was simply the failure to present the claim within the time presented by the statute of, non-claim. That the suit was commenced within . eighteen ..months was certainly a good replication. The commencement of the suit was a presentation of the claims.
"We find no error in the several rulings of the court upon the pleadings. , ¡
This suit was brought to recover from the, defendant money paid by the plaintiff’s intestate, in part satisfaction of the proportionate liability of defendant’s intestate upon three notes made by the plaintiff’s intestate, the defendant’s intestate, and one Fontaine. The ;proof showed that the three notes were paid off in full by the plaintiff’s intestate and Fontaine, and there was no other proof on the subject ot the payments. We do not agree with the defendant’s counsel, that the court ought to have excluded this proof, or charged the jury that the plaintiff could not recover upon this evidence. In the absence of any participation in the payment of the notes by the defendant’s intestate, it was the legal duty of the plaintiff’s intestate and Fontaine to pay in equal proportions. The evidence does not satisfactorily determine whether the payments were the joint acts of the plaintiff’s intestate and Fontaine, without any discrimination as to their respective contributions to the payments; or whether each contributed a moiety; or, if not, -what was the amount contributed by them respectively. The construction of this testimony, and the ascertainment of its effect, like the determination of all other doubtful questions of fact, was the province of the jury. Giving weight to the consideration that plaintiff’s intestate and Fontaine were, as between themselves, each legally liable to pay a moiety, and therefore that Fontaine would not be likely to pay voluntarily more than half, the court could not say that there was no tendency of the proof to the conclusion that the plaintiff’s intestate and Fontaine paid equal.amounts. The whole question was properly left to the jury.
*560fOne of tbe sentences in the deposition read in evidence by the plaintiff, is in-the following words : “The other of said notes, for $5,500 and interest, attached to said interrogatories, and due, January-1st, 1847, was paid as follows, to-wit, three thousand. dollars' -was remitted by John Fontaine, John R. Dawson, to Ilolbrook, of the firm of TIolbrook, Nelson Co., New .York, on the 28th December, 1846;. [and the balance paid to Edward E. Powers, by said, Fontaine, and Dawson, on 27th April, 1847, as admitted by Fontaine, Dawson and Powers, said Powers acting as agent of said Holbrook, Nelson & Co.] ■ Each of said notes was handed over to J ohn R. Dawson at the time they were paid.” So much of this sentence as is included in brackets, was objected to by the defendant, on the ground that the prpof of the, payment of. the balance on the note* is made, by the witness . to stand-on the ■ admission of Powers, Fontaine and Dawson, and that that. there ■ was no.proof of the agency of Powers. This objection was well taken, and should have been sustained. The part of the sentence, objected to does not legitimately admit of any other construction, than that the witness makes his statement on the information of the-three persons. The, declarations cannot be admissible upon the ground that Powers (one of the declarants)-was an agent. > The mere fact that he acted as: agent, does not prove the agency. For the error in, oyerruling the objection' to this’evidence, there.must be a reversal.
STQNE, J.,I thinl-q that a claim against an insolvent* ■' estate, to secure its allowance, should be'filed in that'court pursuant to the statute, notwithstanding a suit may be pepding for its recovery. If. such claim is, reduced to judgment, before the1 time for filing claims expires, -of course it will be sufficient to file the judgment; and, probably, no question could* afterwards arise on the justness of such claim,. If, however., the suit is not tried during the period, allowed for filing claims,11 am satisfied the claim must be filed in the probate court as other claims. I think the act of 1843 admits of no other construction.
Judge Walker bases his opinion on his construction of *561tlio language of tlio 12th section of that act. I think the same section answers his argument. It provides that, after judgment, “a duly certified transcript of such judgment [may be] filed as a claim against the estate, as herein provided.” Looking entirely through that statute, there is no provision for fili ng claims against estates declared insolvent, except that found in the 9th section, which limits the period for filing to six months. The'terms, “herein provided” must relate to the provisions of that section ; and I find no warrant for allowing a claim to which exceptions are filed, or objections interposed, unless such claim was filed within the time prescribed by the 9th section.
I think, however, that the omission to file such claim in the probate court, furnishes no defense, under the act of 1843, to the further maintenance of a suit pendingin the circuit court. The statute contains no such provision; and I discover nothing in the nature of the question, which renders it necessary we should so declare.
Whether the act of filing the claim in the probate court, and thus claiming an allowance there, affords matter for plea to the further maintenance of the common-law suit, is a question not raised by this record, and wo need not now consider it. It is a question which, under this view,; may possibly arise. It is my decided opinion, that a creditor Avho, at the time of the declaration of insolvency, has a suit pending to recover his demand, has no right, by force of his pending suit, to delay the final settlement beyond the period defined by the statute. In other words, if he fail to file his claim in the probáte court, the settlement may be had without1 any reference to it; and' 1 such creditor is left to other sources for its payment," - should there be such sources. — -Phelan v. Phelan, 13 Ala. 679; Middleton v. Maull, 16 Ala. 482. ’
My attention has boon directed to a remark found in ■ the opinion delivered at the last term of this court, in the ease of McDougald’s Adm’r v. Rutherford, and which remark is in conflict with the view here expressed by me.' That remark was not necessary to the decision then pronounced, and it did not, at the time, arrest my attention. *562I think very serious delays and embarrassments will grow out of the construction placed on this statute by my brother Walker, — delays against which the statute seems to have specially guarded;' and I am unwilling to adopt his construction.
Bice, C. J., not sitting.