WELCH v. STEWART. 41 ,

The presumption of payment, arising from lapse of time, is a
point of defence, which may be pressed with effect, either at law
or in equity, where it can be made to bear upon the asserted claim;
but, in this instance, the claim is sustained by the deed of trust;
and if the lapse of time could have been used at all, as a point of
defence, it should have been presented in some form substantially
as a plea of limitations; and in that way it has been presented;
but it has been offered entirely too late.

The filing of a creditor's bill in England, it it said, enures to
the benefit of all creditors who may come in under the decree, so
as to take their claims out of the operation of the statute of limita-
tion, from the day of filing the bill, (e) But here no such pre-
sumption or fiction has been adopted. As to all creditors coming
in after the institution of the suit, or under the decree, the day of
filing the petition to be admitted as a creditor, or the day of filing
the voucher or evidence of the claim is considered as the com-
mencement of the suit as to such creditor; and as that day on
which the further running of the statute of limitations as against
his claim is to cease. And where a claim is made in the ordinary
mode by bill, and the defendant, by his answer, in any manner
contests it, without relying on the statute of limitations, he can-
not be permitted to resort to that defence after having thus tacitly
waived it.

The principle of this practice is applied wherever it can be
brought properly to bear upon the course of proceedings. A cre-
ditor who comes, or is brought in, as in this instance, under a
creditor's bill, is considered in many respects as a co-plaintiff, from
the time his claim has been filed or brought before the court, and
all other creditors, as well as the original defendants, with whose
interests such claim may come in conflict, may oppose it, in any
legal manner they may deem most available. In doing so, the
creditor, who, by reason of his claim, has been invited, or sum-
moned to appear before the court, and the party who contests it,
assume the relative positions of plaintiff and defendant; or, as they
may be called, in contradistinction from the original plaintiff and
defendant, that of claimant and opponent; and as standing in
those relative positions, the controversy between them has
been considered. In this view of the matter, it has been long
established, that if an opponent means so to defend his interests,

(e) Sterndale v. Hankinson, 2 Cond. Chan. Rep. 198.