304 HAMMOND v. HAMMOND—2 BLAND.

where the creditor may recover by action of debt; the common
law, in other respects, remains unaltered; so that no damages can
be recovered of a devisee of the land, for a breach of covenant
made by the devisor. Wilson v. Knubley, 7 East, 128. This Eng-
lish statute has been expressly recognized as one of the legislative
enactments of our Code; 1797, ch. 113; and, consequently, where
a creditor's suit is brought to charge any lands so devised, the
heir as well as the devisee, must be made a party; because it is
the statute alone which makes the land assets in the hands of the
devisee; and that requiring the heir to be made a defendant at
common law, the bill in this Court must follow the remedy therein
prescribed. Gawler v. Wnde, 1 P. Will. 99; Gallon v. Hancock, 2
Atk. 432.(o) But if the bill alleges, that the testator left no heirs,

(o) ORCHARD v. SMITH.—This bill was filed on the 81st of August, 1738, by
John Orchard, Robert Pearle, William Cumming, and Jonathan Davis, against
John Smith and Mary his wife, and Peter Hoggins. The bill states, that
Gunder Erickson, deceased, being, in his life-time, possessed of consider-
able real and personal estate, and being, at the same time, indebted to sundry
persons, in order to pay his debts, in case his personal estate should fall shore,
on the 17th of March, 172S, by his last will devised as follows: "It is my will
and desire, that a certain tract of land belonging to me, lying on Rook
Creek, called Norway, containing six hundred and thirty acres; and another
tract of land containing two hundred acres, called Garden's Delight; like-
wise two houses and lots in Nottingham, in Prince George's County; and
my right to a house and lot in Queen Ann Town, all be sold in order to die-
charge the debts I owe;" and then appointed his wife, the defendant Mary,
his sole executrix; that in a short time thereafter he died; that she, Mary,
caused the will to be proved; but renounced the administration thereof;
whereupon letters of administration, with the will annexed, were granted
to the defendant Hoggins, who acted as such accordingly; that the deceased
was indebted to the plaintiff Orchard, in the sum of £13 1s. 6d. current
money; to the plaintiff Pearle, in the sums of 4,246 Ibs. of tobacco, and
£28 5s. 0d.; that they severally sued the administrator Hoggins, who pleaded
that he had fully administered, whereupon they obtained judgments against
him therefor, when assets should come to his hands; that the deceased was
indebted to the plaintiff Cumming, in the sum of 2,638 1bs. tobacco; that
the defendant Mary afterwards married the defendant Smith; who have
hitherto refused to sell the said lands, unless they may be compelled and
justified in doing so by a decree of this Court. Whereupon it was prayed,
that the said lands, or so much thereof might be sold, as would be sufficient
to pay the deceased debts and the costs and charges of the persons empow-
ered to sell the same.

On motion of the defendant Hoggins, by his solicitor, it was Ordered, that
the said name of Peter Hoggins be struck out of the said bill of complaint.

The defendants Smith and wife, by their answer, admitted that Gunder
Erickson, deceased, did make his will, as in the bill mentioned, and that on
the defendant Mary's renouncing the executorship, administration was
granted to Peter Hoggins; that the said Erickson, by his will, devised to the
defendant Mary, in fee simple, half of the tract of land on which he lived,
in lieu of her dower, which she accepted as such; that after the marriage of
these defendants, the plaintiff Cummings, and Robert Tyler, bond creditors
of the deceased, sued these defendants, as devisees, and recovered judg-