Page:William Blackstone, Commentaries on the Laws of England (1st ed, 1768, vol III).djvu/31

Ch. 2. all the ret of the world beides. For, though a ratable payment of all the debts of the deceaed, in equal degree, is clearly the mot equitable method, yet as every cheme for a proportionable ditribution of the aets among all the creditors hath been hitherto found to be impracticable, and productive of more michiefs than it would remedy; o that the creditor who firt commences his uit is intitled to a preference in payment; it follows, that as the executor can commence no uit, he mut be paid the lat of any, and of coure mut loe his debt, in cae the etate of his tetator hould prove inolvent, unles he be allowed to retain it. The doctrine of retainer is therefore the neceary conequence of that other doctrine of the law, the priority of uch creditor who firt commences his action. But the executor hall not retain his own debt, in prejudice to thoe of a higher degree; for the law only puts him in the ame ituation, as if he had ued himelf as executor, and recovered his debt; which he never could be uppoed to have done, while debts of a higher nature ubited. Neither hall one executor be allowed to retain his own debt, in prejudice to that of his co-executor in equal degree; but both hall be dicharged in proportion. Nor hall an executor of his own wrong be in any cae permitted to retain.

II. is where he, who hath the true property or jus proprietatis in lands, but is out of poeion thereof and hath no right to enter without recovering poeion in an action, hath afterwards the freehold cat upon him by ome ubequent, and of coure defective, title: in this cae he is remitted, or ent back, by operation of law, to his antient and more certain title. The right of entry, which he hath gained by a bad title, hall be ipo facto annexed to his own inherent good one; and his defeaible etate hall be utterly defeated and annulled, by the intantaneous act of law, without his participation or conent. As if A dieies B, that is, turns him out of poeion, and dies leaving a Rh