Parol evidence is not competent to prove that an appeal was claimed from the decree of a judge of insolvency, disallowing a claim presented for proof against an insolvent estate, and that notice of such appeal was given to the assignee,
Appeal from the decree of the judge of insolvency, disallowing a claim presented by the appellant against the estate of an insolvent debtor. The appeal was entered in the superior court at October term 1860; and, no answer having been made or issue joined, as required by St. 1838, c. 163, ยง 4, the appellant moved for a default, but Allen, C. J. overruled the motion. Immediately after the above ruling, a motion to dismiss the appeal was made by the appellee, because the records did not show that an appeal from the decree of the judge of insolvency was ever claimed; and the motion was granted, although the appellant offered to prove that an appeal was orally claimed, and that oral notice thereof was given .to the assignee, judge and register. The appellant alleged exceptions.
C. G. Johnson, for the appellant.
E. Avery, for the appellee.
The statute requires, in order to the allowance of the appeal, that the same shall be claimed and notice thereof given to the judge of insolvency, to be entered on the record. This record is the foundation of the appeal, without which it cannot be maintained.
Parol evidence of such claim of appeal and notice thereof is inadmissible. Wells v. Stevens, 2 Gray, 115.
Exceptions overruled.
1 Allen 403
83 Mass. 403
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