248 ELLIC0TT v. WELCH.

mine, that a judgment should have one kind of operation at law,
and another in equity; or to hold that a plaintiff might, when it
suited his purpose, and in some courts, insist, that a judgment,
which he, himself, had caused to be entered up, should be deemed
n conclusive evidence of a fact; and yet that he might be permitted,
for other purposes and upon other occasions, to insist that it should
not stand in the way so as to prevent him, for his own benefit,
from proving the non-existence of the very fact, of which he him-
self had voluntarily received it as the most satisfactory and con-
clusive evidence, (g) Equity follows the law, and in no respect
with more satisfaction than in avoiding anomalies and incongrui-
ties. And besides, if the petitioner Gaither, had intended to con-
trovert the fact of the sufficiency of the personal assets, he should
have filed his bill here for the recovery of his claim; but, by suing
at law, he tacitly waived that right, as against the heirs, unless a
deficiency should be relied on and sustained as a defence by the
administrator; and he is now precluded from doing so, by the
nature of the judgments he himself has voluntarily sued for and
obtained.

The other petitioner Warfield, as the surety of the late Nicholas
Welch, might have filed a bill here against his heirs, on the ground
of the insufficiency of his personal estate, to charge the realty with
an indemnity to himself, Warfield, before he had paid the debt;
also in behalf of the other creditors of the late Nicholas Welch;
but having failed to do so, and having submitted to an absolute
judgment against himself, as administrator of his principal, he can
now have no such claim to relief, (h)

Whereupon it is Ordered, that the said petition be and the same
is hereby dismissed with costs.

On the 6th of November, 1829, William Gaither and Joshua
Warfield, for themselves and in behalf of the other creditors of the
late Nicholas Welch, filed their petition in this case, in which they
again stated the same facts which they had set forth in their for-
mer petition, and that those absolute judgments had been impro-
vidently rendered, the personal estate of the deceased being then
wholly insufficient to satisfy the claims against it; and that the
petitioner Welch believed, that they would bind only a proportion

(£) Dorsey v. Hammond, I Bland, 472.—(h) Arthur v. The Attorney-General,
ante 245, note.