all the reſt of the world beſides. For, though a ratable payment of all the debts of the deceaſed, in equal degree, is clearly the moſt equitable method, yet as every ſcheme for a proportionable diſtribution of the aſſets among all the creditors hath been hitherto found to be impracticable, and productive of more miſchiefs than it would remedy; ſo that the creditor who firſt commences his ſuit is intitled to a preference in payment; it follows, that as the executor can commence no ſuit, he muſt be paid the laſt of any, and of courſe muſt loſe his debt, in caſe the eſtate of his teſtator ſhould prove inſolvent, unleſs he be allowed to retain it. The doctrine of retainer is therefore the neceſſary conſequence of that other doctrine of the law, the priority of ſuch creditor who firſt commences his action. But the executor ſhall not retain his own debt, in prejudice to thoſe of a higher degree; for the law only puts him in the ſame ſituation, as if he had ſued himſelf as executor, and recovered his debt; which he never could be ſuppoſed to have done, while debts of a higher nature ſubſiſted. Neither ſhall one executor be allowed to retain his own debt, in prejudice to that of his co-executor in equal degree; but both ſhall be diſcharged in proportion[1]. Nor ſhall an executor of his own wrong be in any caſe permitted to retain[2].
II. Remitter is where he, who hath the true property or jus proprietatis in lands, but is out of poſſeſſion thereof and hath no right to enter without recovering poſſeſſion in an action, hath afterwards the freehold caſt upon him by ſome ſubſequent, and of courſe defective, title: in this caſe he is remitted, or ſent back, by operation of law, to his antient and more certain title[3]. The right of entry, which he hath gained by a bad title, ſhall be ipſo facto annexed to his own inherent good one; and his defeaſible eſtate ſhall be utterly defeated and annulled, by the inſtantaneous act of law, without his participation or conſent[4]. As if A diſſeiſes B, that is, turns him out of poſſeſſion, and dies leaving a
