36 WELCH v. STEWART.—2 BLAND.

purpose for which it was introduced. But it is said to afford a safe
and just means of urging on another point; and that is the lapse
of time as evidence of payment.

* The presumption of payment, arising from lapse of time,
41 is a point of defence, which may be pressed with effect,
either at law. or in equity, where it can be made to bear upon the
asserted claim; but, in this instance, the claim is sustained by the
deed of trust; and if the lapse of time could have been used at all,
as a point of defence, it should have been presented in some form
substantially as a plea of limitations; and in that way it has been
presented; but it has been offered entirely too late.

The filing of a creditor's bill in England, it is said, enures to
the benefit of all creditors who may come in under the decree, so
as to take their claims out of the operation of the Statute of Lim-
itation, from the day of the filing the bill. Sterndale v. Hankin-
son, 2 Cond. Chan. Rep. 198. But here no such presumption or fiction
has been adopted. As to all creditors coining in after the institu-
tion of the suit, or under the decree, the day of filing the petition
to be admitted as a creditor, or the day of filing the voucher or
evidence of the claim is considered as the commencement of the suit
as to such a creditor; and as that day on which the further run-
ning of the Statute of Limitations as against his claim is to cease.
And where a claim is made in the ordinary mode by bill, and the
defendant, by his answer, in any manner contests it, without rely-
ing on the Statute of Limitations, he cannot be permitted to re-
sort to that defence after having thus tacitly waived it.

The principle of this practice is applied wherever it can be
brought properly to bear upon the course of proceedings. A cre-
ditor who comes; or is brought in, as in this instance, under a
creditor's bill, is considered in many respects as a co-plaintiff, from
the time his claim has been filed or brought before the Court, and
all other creditors, as well as the original defendants, with whose
interests such claim may come in conflict, may oppose it, in any
legal manner they may deem most available. In doing so, the
creditor, who, by reason of his claim, has been invited, or sum-
moned to appear before the Court, and the party who contests it,
assume the relative positions of plaintiff and defendant; or, as they
may be called, in contradistinction from the original plaintiff and
defendant, that of claimant and opponent; and as standing in
those relative positions, the controversy between them has always
been considered. In this view of the matter, it has been long
established, that if an opponent means so to defend his interest,
*he must put in the plea, or rely upon the Statute of Limi-
42 tations in due season; for, if he suffers the proper stage of
the case to pass by, or if he himself does, or stands by and suf-
fers an act to be done, which necessarily implies a waiver of that
defence on his part, he cannot afterwards have recourse to it.