498 POST v. MACKALL.—3 BLAND.

legatee to call for this species of marshalling; that if those credi-
tors, having a right to go to the real estate descended, will go to

that estate had been devised, but, if the proceeds of the sale of the mort-
gaged estate should not be sufficient to pay the mortgage debt, then the
bank must be let in among the general creditors for such balance —2 Mad
Chan Pra 655, Greenwood v Taylor, 4 Cond Chan Rep 381, Hammond v
Hammond, 2 Bland, 384, and, for the protection of that balance, be allowed
to have the benefit of its plea of limitations against any other of the general
creditors of the deceased

In making the distribution of the proceeds of the sale of the real estate
to the satisfaction of the creditors of the deceased, it is indispensably neces-
sary to have a correct statement made of the amount of the claim of each
creditor and also to shew the fund upon which alone those claims are
chargeable Rebecca Gibson's interest in the estate of the deceased being
in the nature, and in lieu of dower and, as such expiessly reserved, must,
therefore be first ascertained, and set apart as forming no portion of that
fund upon which any creditor of the deceased can have any claim what-
ever And the interests, other than the mortgaged estate liable for the
mortgage debt, of Clara Tilton and James Tilton, having been placed, by the
decree of the Court of Appeals, beyond the reach of this Court in this suit,
cannot be deemed a part of that fund out of which any creditor, now here,
can have awarded to him payment of any portion of his claim

A claim for contribution either at law or in equity, can only arise as be-
tween or among co-sureties on the failuie or insolvency of their principal,
or where two or more being liable, in respect of, and in due proportion to
the assets or effects respectively held by them, and one has paid the whole,
or more than his due proportion of the debt A claim for contribution being
a secondary one arising among co debtors or those chargeable as such, can
never be made or adjusted to the prejudice of a creditor in any way what-
ever And therefore, as there has not been as yet, any case of contribution
brought before the Court, no further notice need be taken of the principles
of law or equity, in relation to such a case and especially as it can only be
made after all the claims of the creditors of the deceased have been defi-
nitively adjusted —Harbert's Case, 3 Co 12 Long v Short, I P Will 403,
Harriss v Ingledew,3 P Will 98 Lingard v Bromley, 1 Ves & B 116, Der-
ing v Winchelsea, 1 Cox, 318, Headley v Readhead, Coop 50 Mayhew v
Crickcett, 3 Swan 192 Cheesebrough v Millard 1 John Ch Ca 415 1 Mad
Cha Pra 233

But, in respect to the claim of the plaintiff McCormick, founded as regards
the whole estate of the deceased debtor, on a promissory note for $2 500, and,
as such, being an apparently indivisible cause of suit, it has been finally de-
termined, that the pleas of limitations which had been successfully directed
against it, by the defendants James Tilton and Clara Tilton enured only to
their own benefit, and operated no farther than as a protection of their
interests, by shewing that the plaintiff s claim had been satisfied as to them
Hence it now becomes necessary to ascertain to what that proportional satis-
faction amounts These protective pleas operate as a bar of so much of the
plaintiff s claim existing at the time of the death of the deceased and
which, after deducting from it any payment obtained, or to which it was
entitled from the personal estate might otherwise have been charged upon
the realty in the hands of these two defendants —Haslewood v Pope, 3 P
Will 325 —And, therefore, their protective pleas operate as a bar of all
costs &c incurred in this suit, and as presumptive evidence of the pay-