312 HAMMOND v. HAMMOND.—2 BLAND.

ing a total loss of his debt, and that, therefore, the ancient
common law notion, that the land should be considered only as a
dernier security tor a debt to which the heir became subject on the
contract, in respect of real assets, if the personal assets failed,
furnished the true principle on which an adjustment ought to be
made, between the heir and executor, founded an equity upon
that common law notion; and thereupon substituted the heir in
the place of the creditor, and fixed the debt on the personal assets
if sufficient, making the personal, as between the heir and execu-
tor, exonerate the real estate. In which respect the Court of
Chancery, acting in conformity with its principles, that in all eases,
where there is a measuring1 cast between an executor and an heir-
at-law, held, that the latter should have the preference. There-
fore, although a creditor by specialty may, at law, sue either the
heir or executor, and shall have the benefit of his security against
the one or the other, at his election; yet if the heir or devisee be
charged in debt, where the executor has assets, the former may
ultimately compel the latter, in equity, to pay the debt; unless he
can shew some special exemption by the act of his testator upon
which he ought to be discharged. Powel Mortg. 777, 779; Armi-
tage v. Metcalf, 1 Cha. Ca. 74; Wolstan v. Aston, Hardr. 511; Clifton
v. Burt, 1 P. Will. 680; Edwards v. Warwick, 2 P. Will. 175;
Galton v. Hancock, 2 Atk. 435.

After the adoption here of the Statute of 1732, subjecting lands
to the payment of debts, the phraseology of the writ of fieri facias
was altered so as to authorize the levying of it upon the goods
and chattels, lands and tenements, of the debtor; and the statute
was thus directly put into operation against living debtors accord-
ing to its very letter. But it was soon perceived, that a statute,
so extensive in its bearing, could not be, in any similar way, lite-
rally applied to the estates of deceased debtors in the hands of
their heirs, without creating much confusion in the administration
of such estates; and without putting it in the power of each

327 simple * contract creditor to have the estate collusively
seized and sold, in fraudulent exclusion of other creditors; or so
as to operate injuriously upon the interests of others, and particu-
larly upon the heir by compelling him to seek re-imbursement from
the personal estate, which was the primary fund for the payment
of debts. And therefore, those principles of equity by which the
rights of bond creditors had beeu so far modified and controlled
as, in many cases, to do equal justice to all creditors; and so as,
at once, to the full value of the personalty, to protect the realty in
the hands of the heir, were so followed out, in the construction of
this statute, as not to permit a simple contract creditor to main-
tain an action at common law, at all, against the heir merely in re-
spect of the real assets descended; but to compel him to go imme-
diately into a Court of equity against the heir, together with the