24 TESSIER v. WYSE.—3 BLAND.

witnesses. It was also shewn, that judgments had been confessed;
but that they remained ineffectual, as stated, because the bond
had been lost by the attorney of the plaintiff Tessier. It was
further shewn, that a mortgage had been made, as stated, to
George Riston. That in the petition filed by Rachel Wyse and
John M. Wyse in this Court, for the sale of the testator's real
estate, called Deer Park, it was stated, that S. Smith & Buchanan
had a claim against his estate; and that after the payment of that
claim; deducting the commissions to the administratrix; and the
widow's third, the other two-thirds left for the support of the chil-
dren, would be wholly inadequate for that purpose; so that their
interests and necessities required a sale of the lands as directed
by the testator. On the 1st of October, 1816, a decree was there-
fore passed directing a sale; which sale, as admitted by the an-
swers of some of the defendants, was accordingly made. It was
further shewn, that Rachel Wyse was dead; that administration
de bom's non, with the will annexed, had been granted to Joseph
Allender; who on the 23rd of January, 1824, returned an inven-
tory of the property which had come to his hands, amounting to
$2,293, consisting of negro slaves, cattle, household furniture, and
some other articles.

BLAND, C., 7th September, 1830.—This case standing ready for
hearing, and having been argued by the plaintiff's solicitor, and
submitted without argument by the solicitor for all the heirs of the
late William Wyse, and no solicitor appearing tor the other de-
fendants, before the close of the sittings of the term according to
the rule, the proceedings were read and considered.

The claim of the plaintiff Tessier, as stated in the bill, has been
fully established. But the defendant Riston, in his answer, alleges,
that the plaintiff Tessier, by his negligence and misconduct, has
lost all right to any portion of either the real or personal estate of
the testator; and that his only remedy is against the person of the
defendant John M. Wyse. And the defendant William A. Wyse,
denies that S. Smith & Buchanan now have, or ever had any such
claim as the real estate of the testator could be charged with.
From these allegations it is clear, that these defendants do not
rely upon the Statute of Limitations, or any lapse of time as a bar
* to the plaintiff's claim. And so far as these or any other
35 allegations of any of these defendants may be understood
to rely upon the fact, as stated by the defendant John M. Wyse,
that the plaintiff Tessier received the bond in full satisfaction of
his claim against the estate of the deceased, it is met, and so
totally disproved by the testimony, that there is not left even a
plausible pretext for any such defence to rest upon. But, it would
seem to be intimated, by these allegations; and, perhaps, it was
intended to be relied on as a defence, that, as the plaintiff Tessier