HAMMOND v. HAMMOND.—2 BLAND. 311

estate of a debtor shall be assets for the satisfaction of all just
debts, duties or demands of what nature or kind soever, in like
manner as real estates are by the law of England, liable to the
satisfaction of debts due by bond or other specialty, and shall be
subject to the like remedies for seizing, extending and selling the
same, and in like manner as personal estate, 5 Geo. 2, c. 7; David-
son's Lessee v. Beatty, 3 H. & McH. 612.(q) From which, it would
seem, to be impossible to avoid coming to the conclusion, which
has been so perfectly well settled in regard to bond creditors, that
a suit, at common law, under the positive provisions of this statute,
might be sustained by a simple contract creditor, as well as by a
bond creditor, against the heir, grounded merely on the fact of
real assets having descended to him. Yet it appears to have been
always held, that this statute should not be so construed as to
authorize such a suit on that foundation alone by a simple contract
creditor; and it has been adjudged accordingly, that a simple con-
tract creditor cannot sustain an action of assumpsit against the
heir merely in respect of real assets descended; although he might
maintain such an action if the heir had, in respect of such assets,
made an express promise to pay. Preston v. Preston, 1 H, & J. 336:
Lodge v. Murray, I H. & J, 499; Gist v. Cockey, 1 H. & J, 135.
The reason of a construction apparently in such direct opposition
to the express letter of this statute, requires some explanation.
At common law; lands were liable in the hands of the heir for
the debts of his ancestor, due by specialty, in which the heir was
bound; and they were also made liable by several English statutes
giving an extent or elegit. which had been adopted here; Kilty Rep.
143, 144, 151; 1715, ch. 23, s. 6; before the introduction of the
statute of 1732, making lands in the colonies liable to be taken in
execution for debt. In England a bond creditor, after the death
of his debtor, might sue the executor, or the heir separately at
common law: or he might tile a bill in equity against both, in
which suit all the specialty creditors of the deceased might come
in and participate. But although the common law, after lands
were made liable to be taken in execution for debt * by ex- 326
tent, statute, staple, and elegit, seems to have relaxed in
favor of the creditor so far as to let him in indifferently on the
real or personal fund at his election, it provided no means of de-
termining how the burthen should be borne as between the heir or
terre-tenant and the personal representative of the debtor. Here,
therefore, equity stept in; and considering the common law remedy
against the heir, and the statute provisions against the land as in-
stituted only for the sake of preventing the creditor from sustain

(q) Lands in England have been since made liable for simple contract debts,
by a statute passed in the year 1834, 3 and 4 W. 4, c. 100; Calvert on Parties
152; Ram. on Assets, 226; Putnam v. Bates, 3 Cond. Cha. Rep. 355.