176 JONES v. MAGILL.—1 BLAND.

the motion may be heard without answer, or immediately at the
same term, or during the sittings of the next term after the filing
of the answer, without notice; or at any time, on giving so many
days notice, after filing the answer; or on the answer of one or
more of the defendants before the others have answered. (f) And

(f) JENIFER v. STONE.—This bill was filed on the 29th of June, 1809, by
Daniel of Saint Thomas Jenifer, administrator of Daniel Jenifer, deceased,
against Travers Daniel, John M. Daniel, and Michael J. Stone, surviving
executor of Thomas Stone.

The bill states, that the defendant Michael, the surviving executor, had.
on the 23d of October, 1806, obtained a decree in this Court against the in-
testate of this plaintiff, for the sum of £1,119 3s. 7d.; that the defendant
Michael's testator left two daughters, his only children and heirs: one of
whom. Mildred, married the defendant Travers Daniel, and the other, Mar-
garet, married the defendant John M. Daniel; that these defendants. Travers
and John, after their marriages, on the 13th of January, 1798. entered into
a covenant 'with the executors of the late Thomas Stone, of whom the de-
fendant Michael is the survivor, by which they, as executors, were to be
saved harmless from the demands of the creditors, and discharged from all
liability to the representatives of their testator; and they, Travers and John,
were to use the names of the executors, for the purpose of collecting and
recovering all sums due to their testator, that this plaintiff's intestate was
warned not to pay the amount of the decree against him to this defendant
Michael; in consequence of which, and being assured, and believing, that
the whole amount was properly payable to these defendants, Travers and
John, he paid in part satisfaction of the decree, the sum of three hundred
pounds to the defendant Travers; that this plainiiff has discovered, from
the books of account of his intestate, that there is a large sum due from the
defendant Michael to him: that the defendant Michael had caused a fieri
facias to be levied on the estate of this plaintiff's intestate, without giving
credit for the amount of the book account; and had only agreed, that the
payment of three hundred pounds should be suspended until he should
know the result of a suit instituted, in this Court, against him by Alexander
Scott, for the recovery of a debt alleged to be due from his testator; and if
that debt was recovered, that then he, Michael, would cause the whole
amount, including the three hundred pounds, to be levied under the fieri
facias: and it was in conclusion stated, that the defendants, Travers and
John, then resided in the State of Virginia. Whereupon the plaintiff prayed
for an injunction to stay the proceedings upon the execution, and for general
relief. The bill was sworn to by the plaintiff.

KILTY, C., 29th June, 1809.—The Chancellor, after some hesitation and
douht on. the subject, has determined to order the injunction as prayed.
There would have been less room for doubt, if the former complainant, M.
J. Stone, had insisted, on levying, at this time, the whole sum, without al-
lowing for the £300 paid to T. Daniel: but, inasmuch as the bill alleges, that
although that sum is, for the present, suspended, the said M. J. Stone de-
clares, that he will hereafter levy it, if necessary, and it is a rule of this
Court not to suffer a creditor to proceed to the recovery even of what is due.
when he demands also what is not due: the injunction, is ordered on that
part of the bill.

The Chancellor does not consider the debt stated to be due from M. J.
Stone to Daniel Jenifer, to be sufficiently established from the appearance of