18 TESSIER v. WYSE.—3 BLAND.

duty of the Court, to take care that the same subject should not be
put in a course of repeated litigation, and with that view, to re-
quire of parties reasonably active diligence in the first instance.
Young v, Keighly, 16 Ves. 351. If the representative of Casenave,
or those by whom it was fit to have his interests taken care of after
his death, had used any ordinary diligence, *they certainly
28 might have brought before the Court in this suit, in a course
of thirty-two years, which has elapsed since his death, every par-
ticle of that competent and sufficient testimony which the peti-
tioner says might even yet be obtained. It is not enough to shew
that injustice has been done in any instance, even supposing a
case of that sort to have been exhibited by the petitioner, but
that it has been done under circumstances which authorize the
Court to interfere. The Court must see that injustice has been
done, not merely through the inattention of a party, but that
owing to some peculiar state of things, he could not have sooner
availed himself of his means of relief; that he was ignorant of
his proofs, or that the matter on which he relies, could not have
been sooner or otherwise brought before a Court of justice for ad-
judication. Batement v. Willoe, 1 Scho. & Lefr. 204; Kemp v. Squire,

1 Ves, 206; Stanard v. Rogers, 4 Hen. & Mun. 439; Winston v. John-
son's Executors, 2 Man. 305; Erwin v. Vent, 6 Mun. 267. In fine, I
am entirely satisfied that the prayer of the petitioner ought not to
be granted.

Whereupon it is ordered, that the said petition, filed by John
Glenn, administrator de bonis non of the late Stephen Casenave,
and also the said supplemental petition, be and the same are here-
by dismissed, with costs to be taxed by the register.

TESSIER v. WYSE.

CREDITORS' SUITS.—LIABILITY OF REAL ESTATE OF DECEASED DEBTOR.—ORDER
OF MARSHALLING ASSETS IN PAYMENT OF DEBTS.—CHANCERY PRACTICE.—
INFANT DEPENDANTS.

A creditor is not bound to use active diligence against his debtor, (a)
The plaintiff in a creditor's suit is not bound to allege and shew, that he
had used any degree of active diligence, or that the personal estate of
his deceased debtor was insufficient to pay MB debts in order to have his
real estate sold for that purpose, (b)

The sufficiency of the personal estate of the deceased to pay his debts, giving
that ground of equity upon which the realty is saved for the benefit of
the heir or devisee, it is with him alone to allege and shew that fact.

(a) See Whitridge v. Durkee, 2 Md. Ch. 442.

(b) Reversed in Wyse v. Smith, 4 G. & J. 303. See Hammond v. Hammond,

2 Bland, 806.