The opinion of the court was delivered by
Williams, Ch. J.The auditor reports, in this’case, that the two items of account, for which the plaintiff now asks a judgment, were for services performed by the plaintiff in payment for a provision box before that time had of the defendant by the plaintiff. On this ground no recovery, can be had therefor. The principle that services performed, or goods or money advanced, or delivered, in payment of a pre-existing debt, cannot be the ground of an action on book, or any other action, has been so oft'en asserted by this court that it would seem the subject should be at rest. The cases of Slasson v. Dvais, 1 Aikens, 73; Stevens v. Tuttle, 3 Vt. R. 519, and Downer v. Frizzle, 10 Vt. R. 541, which is the very case before us, have settled this principle, and are conclusive of this case.
*146There is another ground, which, in rny view, would be equally fatal to any recovery in this case, for a balance to-either plaintiff or defendant. Where a person deceases and his estate is represented insolvent, it is contemplated that all mutual claims between the deceased and any one claiming to be a creditor, should be adjusted, by the commissioners and the balance ascertained ; or, if a suit is pending in favor of the deceased, which the administrator or executor thinks proper to proceed with, or if the administrator thinks proper to commence an action for the recovery of any claim in favor of the estate, then all mutual claims, of every nature, between the estate and the creditor are to be adjusted and offset in such action. This suit was pending at the decease of the intestate, Joseph Beeman, and it was optional with the administrator to proceed with it, or not, as he thought the interest of the estate required- The defendant presented his account to the commissioners, and at the same time stated to them, that the estate had a claim against him for these services, for which the plaintiff now seeks to recover. No objection appears to have been made by the administrator, against the commissioners- allowing the account, nor did he present the claims in favor of the deceased to the commissioners, or signify his election to proceed with this suit-The commissioners proceeded to allow the claims of the defendant, Webster, and we are not to suppose that they did this against the wishes of the administrator. Having found a sum due to Webster, this, sum must be treated as a balance of all mutual claims between him and the deceased. There cannot be a balance of mutual claims found due by the commissioners to a creditor, and in a suit at law, a balance adjudged against him. It is obvious to me, by a comparison of the 8th and 16th sections of chapter 49 of the Revised Statutes, that this judgment of the commissioners bars all claims between the parties. The other ground, however, is the one, which governs our decision in this case. The judgment of the county court is reversed, and judgment for the defendant to recover his costs.