The opinion of the Court was drawn up by

The claim of the plaintiff being for services, rendered by him as a physician, in the testator’s last sickness, is a preferred debt and not subject to payment pro rata, under a commission of insolvency.

It appears that the plaintiff, before the estate was represented insolvent, gave his account to the executor and demanded payment. Na other act or declaration of his is proved, until after the decree of distribution. It further appears, that the executor himself laid the account, which he had thus received, before the commissioners. The Judge instructed the jury, that in so doing he must be presumed to have acted as the agent of the plaintiff, who must be understood to have passed the account to him for this purpose.

This is based upon the mere rendition of an account by the plaintiff, before a representation of insolvency; and as the executor would have been justified in paying it at once, and payment *272was demanded by the plaintiff, we find nothing to justify the deductions, which the jury were instructed they might draw from this act and the subsequent act of the executor. It does not appear, that when the plaintiff presented his account, he knew or suspected, that there would be a commission of insolvency. And if he did, a demand of payment rather negatives, than justifies the implication, that be intended to submit his account to the judgment of commissioners. It certainly affords no affirmative evidence, that such was his intention.

Exceptions sustained.