UPON A PETITION TO REHEAR.
By the Court:We are asked to rehear this case upon the ground that the alleged contributions by Eason to the support of Sarah Sales would, if proved, have been proper credits upon Johnston’s liability as fixed by the commissioner of accounts and confirmed by the court.
This contention cannot be maintained for the reason, not affirmatively appearing in the opinion but conclusively shown by the record, that, according to Johnston’s claim, the entire fund had been thus applied before his accounts were settled. This being true, the defendants are precluded by the effect of the statute (Sec. 2699) from setting up in this action alleged credits and off-sets arising prior to the settlement.
Whether Johnston offered to prove such off-sets or credits before the commissioner, and if not, why not, and why in either event, he waited until after the death of both John and Sarah Sales, and until this action was brought, nearly six years, before he made any attempt to correct the alleged errors in the settlement, are, therefore, immaterial questions except as illustrative of the wisdom of the statute. And the same may be said as to why Eason should have taken, if he did, the unusual and improbable course of paying the fund in small sums to Sarah Sales for her support when she was entitled to the whole sum at once as committee of John Sales.
Re-hearing denied.