402 DEAKINS' CASE.

ceeding to make sale. To this bill there was subjoined the affida-
vit of the plaintiff John Threlkeld of the truth of the facts therein
set forth.

27th April, 1819.—KILTY, Chancellor.—It appears that the land
devised to Mrs. J. Deakins has been considered by the trustee as
liable to sale under the decree, instead of the estate devised to
Francis Deakins for the payment of debts. The trustee is, there-
fore, directed not to proceed to the sale of the land mentioned in
the petition and in the advertisement, lying at the mouth of Senaca,
until further order; which may be made on hearing after such
notice as may be directed.

On the 6th of June, 1821, John Hoye filed his bill of revivor,
stating that Edward Thomas had died without answering his bill
filed on the 18th of January, and that he had, by his will, appointed
William R. King and Edward T. Hebb his executors, against
whom he prayed that his suit might be revived, and therefore
prayed subpoenas against them.

After which, John Hoye, on the 30th of June, 1821, filed his
petition, in which he recites all these before-mentioned proceedings;
and that the sale might not be made before the determination of his
suit commenced by his bill filed on the 18th of January, he prayed
that the trustee might be directed to suspend the sale until further
order. The allegations of this petition were verified by his affi-
davit.

2d July, 1821.—KILTY, Chancellor.—In the bill by Hoye against
Thomas, no mention was made of the decree for a sale, which, if
improperly obtained, ought to be set aside. At present the trustee
John A. T. Kilgour is directed not to make any sale under the decree
till further order.

On the 22d of January, 1822, the defendants King and He66
put in their joint answer to the original bill and bill of revivor of
Hoye, in which, after admitting most of the facts stated in the bill,
they allege by way of avoidance, that Hoye had it not in his power
to make them a good title to the lands mentioned in the agree-
ment; that he had not complied with the agreement on his part,
by reason of which they were in no respect bound by it; that the
validity of the agreement had, by plea, been put in issue in a suit
at law between them, but had been withdrawn and a judgment by
confession rendered; and consequently, it could not now be of any
avail to the plaintiff Hoye.