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s. TONGUE,
considerably augmented. Those creditors to whom these plaintiffs
are bound as sureties, are under an obligation to bring in their
claims, and offer them for a dividend in this case. If they foil to
do so after having had actual notice of this suit, and of the call on
them to bring in their claims, they can obtain no satisfaction from
the estate of the deceased, after the whole of it has been actually
distributed among his creditors; and, consequently, having thus
negligently suffered themselves to be excluded from any recourse
against the estate of their principal debtor to the prejudice of
these plaintiffs, they, as his sureties, will be discharged; or if,
after coming in, they fail to establish their claims, so as to obtain
a dividend, then these plaintiffs, will, upon like principles, be dis-
charged; or, if they come in and establish their claims and obtain
a dividend, then these plaintiffs can only be bound for the balance,
To enable these plaintiffs to avail themselves of a defence, upon
one or other of these grounds, against these claims, to which they
hare referred in their bill, it should be shewn to the auditor and
distinctly set forth by him in his statement of those claims, that
they are those very liabilities, specified in the bill, against which
these plaintiffs ask an indemnity, or a discharge. But, it appears,
though not as clearly as it ought, that those creditors, to whom
these plaintiff's were so bound as endorsers or sureties, have filed
their claims in this case, and that they now stand, as designated
in the auditor's reports for adjudication, (d)
The auditor reports as to some claims, that the defendants have
filed a copy of the list of debts due to this intestate, from which it
appears, that there are accounts which ought to be discounted in
bar; and as to some other claims, that the affidavits annexed to
them admit claims in bar, the amount of which, however, is not
specified.
The recouper of the common law, the set-off of the English
statute law, and the discounts in bar of our acts of Assembly are,
in effect and substance, the same. They refer merely to the op-
posing of one unconnected just claim against another, in the same
mil, to prevent circuity of action; or the bringing of cross suits.
The defendant, or he who, under a creditor's bill, files a distinct
account in bar of any claim, thereby assumes the position of a
plaintiff, and undertakes, by asserting, in that respect, the affirma-
tive of the matter in litigation, to establish the claim he avers to
(d) Arthur 9, The Attorney-General, 2 Bland, 245, note.
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