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Page:United States Reports, Volume 2.djvu/266

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· a6o Cases ruled and adjudged in the rygo. in which, if fuch a writ could ever have been maintained, pre- N/VJ cedents would moft certainly have been recorded. Br THE Coun': :—Great doubt and dillicnlty have arifen in I this cafe, from the force of the arguments ufed by the counfel . for the defendants. As, therefore, the objcét of the plaintitf

 may be fafely and eii`e€tually attained by a compromife, in which

` the defendants declare themfelves ready to unite, we wifh to avoid an immediate deeilion of the point of law, thathas been agitated? g Ronmtrs vnfn- C4r's Executors. j ANY actions were brought, retumable to january- Term E // M I794, againft the defendants, as Executors of Cay, the jh 3;/ ]_ urviving partner of Clow and Cay, whofe affairs were exceeding- · / ly derangedtand, on the 1 tth ofjanunry 1794 (declarations hav- { 4 ing been previoully filed in all the adions) rules were obtained, 5 ** that the defendants plead as of this day, or {hew caufe to the

 contrary, 8tc.” The declarations were filed, and the rules obtain-

L ed, under a fufpieion (aflirmed upon oath) that judgments would be confeiled by the Executors, to other creditors, in pre- » prejudice ofthe feveral plaintiffs in thefe aélions, which, it was agreed, fhoald all be govemed by the decilion upon an argu- ment in any one of them. For the plaintifi§ if it was contended by Ylvomzu, that grant- ing an imparlance (particularly where the fuit was by original, letting forth the caufe of aélion, and that, in the prefent iniiance, is done by Eling the declarations) was difcretionary, and matte! of favour, with the Court; and a variety of cafes were cited, in which the imparlance was refufed, or granted only upon terms that would prevent an injury to the plaintilii Skin. 2. pl. 2. 2 Sl·o·w. 3to. pl. 32 1-. 2- Wil:. 381. t Salk. 186. Ibid. 80. Gilb. IL C. P. 42. 2 Vmz. 62. A rule to enlarge the term for pleading, has, indeed, been cxprefsly refufed, un- Iefs Executors would agree not to pleadjudgments eonfeffed fub- fequent to the expiration: of the term. r Buy}. 122. 8 Ilford 3c>8._ But the principle on which Executors are allowed to re- tain debts due to themfelvcs, is, that they cannot fue ; and not being able to fue, fo as to obtain a preference in that way, the law gives it them in another. By a parity of rcafoning, he who lirlt [ues, ought to be {itil paid. 3 Bl. Com. 18. tg. Slap. T. 479. Ep. 252. Doug. 436. Cro. E. 41. It is true, that counfel, argumentatively, {tate, in Doug. 436, ¢¢ that al- - though, " On this intimation. the parties entered into anatnicuble partitien by deed, which terminated the eoutroveri}. _