
    
      DAVID vs. HEARN.
    
    Spring 1811.
    First District.
    Plaintiff cannot proceed to judgment after a cession.
    The defendant, pendente lite, became insolvent and obtained a stay of proceedings; no answer being filed the plaintiff took judgment.
    
      Alexander moving to set it a side.
    Creditors are to take their ranks, according to the dignity of their respective debts, at the declaration of the insolvency. The plaintiff cannot, by any act of his, ripen his debt into a more priviledged one.
    
      Depeyster for the plaintiff.
    As syndics are not yet appointed, the defendant notwithstanding the cession remains the representative of the property ceded. This ease differs from Dimes vs. Estevan, ante 192. The stay of proceedings prevents any interference with the person or property of the defendant. Proceeding to judgment is not such as interference. The plaintiff cannot be deprived of the benefit, which his vigilance and industry have fairly acquired.
   By the Court.

This case cannot be distinguished, from the one cited. No suit can be carried on without parties. The defendant was civiliter mortuus. The plaintiff was the only party.

Judgment set aside.  