This is a writ of error to reverse a judgment ol the court of common pleas; and the defendant moves that the same may be quashed, on two grounds. 1st. Because no writ of error lies to the court of common pleas sitting as a court of appeal, in the trial of an issue, arising out of the proceedings of the probate court, allowing the claim of a creditor against an insolvent estate. 2d. And because the plaintiff’s remedy was by appeal from the decision of the commissioners of insolvency.

As to the first reason for the motion, it has been argued that the proceedings in the court of common pleas were not according to the course of the common law. But we are of opinion that, by Rev. Sts. c. 68, § 8, the proceedings were strictly according to the course of the common law. That section provides that “ any person, whose claim shall be disallowed in whole or in part by the commissioners, and any executor or administra tor, who shall be dissatisfied with the allowance of any claim, may appeal from the decision of the commissioners, and the claim shall thereupon be determined at common law; and it shall be tried and determined, in like manner as if an action had been brought therefor by the supposed creditor against the executor or administrator.” Formerly, the law required a writ to *134be sued out in such case St. 1784, c. 2. But this formality was deemed unnecessary; and by <§> 10 of c. 68 of Rev. Sts. it is enacted, that “at the term of the court, at which the appeal is entered, the supposed creditor shall file a statement in writing of his claim, setting forth briefly and distinctly all the material facts which would be necessary in a declaration for the same cause of action; and the like proceedings shall be thereupon had in the pleadings, trial, and determination of the cause, as in an action at law, prosecuted in the usual manner.” It is clear, therefore, that the proceedings in the court of common picas were according to the course of the common law.

The other ground of the defendant’s motion is equally untenable. The plaintiff in error could not take an appeal from the judgment of the court of common pleas, unless it was founded upon matter of law apparent on the record; and this is not alleged. The objection, as made by the counsel of the defendant in error, relates to an appeal which was allowed from the decision of the judge of probate, which is wholly immaterial.

Motion to quash overruled.

The judgment of the court of common pleas was afterwards reversed, for the cause set forth in the assignment of error. (See Kempe v. Kennedy, 5 Cranch, 185. Jordan v. Dennis 7 Met. 590. Sabine v. Strong, 6 Met. 270.)