HOFFMAN v. JOHNS0N.

provided that a copy of this order, together with a copy of the peti-
tion, be served on Eli Hewitt, on or before the 27th instant

The plaintiff by her petition stated, that a copy had been served
as required; that the defendant had failed to shew cause or to pay;
whereupon she prayed for a fieri facias; which was ordered
accordingly. The payment of other instalments of the alimony
was enforced in like manner; after which the case was terminated
by the death of the defendant

HOFFMAN v. JOHNSON.

The principles of equity in relation to parties standing as creditor, principal debtor,
and surety. Where evidences of debt are received under an agreement, that when
paid, they are to go in discharge of so much, the assignee is bound to use due dili-
gence in collecting them; and on failing to do so, to return them to the assignor.

The right to take in contiguous vacancy under a warrant of resurvey, is a privilege
incident to a legal, not an equitable title. Where a tract of land is sold as contain-
ing so many acres, more or less, a reasonable allowance for small errors, &c., is to
be made. But where an allowance may be claimed for deficiency, it may be made
up by the vendor, by taking in contiguous vacancy under a warrant of resurvey,
before he has parted with his legal title; and the vendee will be bound to receive
the vacancy so added, so far as to make up the alleged deficiency.

It appears, that Fielder Gantt mortgaged two parcels of land in
Frederick county, the one called Fout's Delight, and the other The
Resurvey on Beauty, to the late James Hunter, who afterwards made
his will, and died; that Hunter, by his will, directed his lands to
be sold by his executors, for the payment of his debts; that his
executors had the mortgages foreclosed, and afterwards sold those
lands to Charge Schnertzell, and gave him a bond for a conveyance
on the payment of the purchase money; that Schnertzall sold a
part to William Hobbs, who sold it to John Hoffman; and the
other part Schnertzell sold to John Hoffmm, who thus obtained a
Claim, as assignee of Schnertzell, to the whole; that Schnertzell
assigned many notes and bonds, in part payment, for which he
was to be answerable; that the executors of Hunter are dead; and
Administration de bonis non had been granted on his estate; and
that Baker Johnson had become seized of the legal title to those
lands. Upon which, Hoffman, Hobbs, and Schnertzell, on the 23d
of July, 1804, filed this bill, to obtain a conveyance of the legal
title, alleging, that the whole purchase money had been paid. The