The question stands not on the defalcation act, but on an agreement, which consequently furnishes the law of the case. The parties, having cross demands, agreed to the institution of an action and reference—.judgment to be entered for him who should succeed; and this was obviously done to settle all by one operation. But to do that it was necessary that somebody should be plaintiff; and it is a matter of accident and small consequence that the loser has been found to have been arranged as such. Both were actors, and each in the attitude of a plaintiff; and as such the defendant was entitled to judgment.

Order to set aside the execution reversed.