494 W ATKINS v. WORTHOGTON.—2 BLAND.

might have been made to pay. If the deceased was only a surety,
then the creditor must shew' that the principal is insolvent, or he
will be excluded altogether. And if the deceased was one of
several sureties, then the creditor must not only shew that the
principal is unable to pay, but that the other sureties are insolvent,
or he will not be allowed to claim more than the equitable proportion
for which the deceased was liable. If these facts and circum-
stances do not necessarily or sufficiently appear from the vouchers,
filed as the foundation of the claim, then the burthen of explana-
tion and proof is thrown upon the creditors, and that, too by the
ex officio act of the Court, without any suggestions or objection
to that effect being made by any other creditor or party in the
case.

When I came here I found that these principles had beeu con-
sidered as long settled; but I have never been able to persuade
myself to approve of them; and now, after some years of obser-
vation, I am satisfied that they occasion much embarrassment and
delay in the administration of the real assets of deceased debtors;
and ol'teuer than otherwise result in absolute wrong and injustice
to creditors against whom not the slightest misconduct can, iu any
manner, be imputed. I shall, therefore, as their correctness and
true application have been called in question by these excepting
creditors, take this occasion to examine the reasons and grounds
upon which they have been rested.

It would seem that these principles, in relation to the adminis-
tration of the real assets of deceased debtors, had been first intro-
duced in the time of Chancellor HANSON. Speaking in reference
*to this subject, in an order passed on the 20th of March,
517 1800, he says: "there is no proof relative to the circum-
stances of George Garnet, or the other two securities, William
Clayton and .Nathan Wright. When claims are exhibited against
an infant's estate, and it appears that the debt was due from the
deceased and another, or others jointly, it has been the Chancel-
lor's uniform practice to allow only the just proportion to come
out of the infant's estate. The practice -is founded on this con-
sideration, that, on an application by creditors, for the sale of an
infant's estate, it is a matter of sound discretion, whether or not
the Chancellor will decree a sale. He is governed by circum-
stances. In case of a debt due from the ancestor or devisor jointly
with another who is solvent, the Chancellor might say I will not
decree a sale, or I will not suffer you to receive your debt from the
infant's estate, because you have it in your power, or had it in
your power, since the ancestor's or devisor's death, to recover
your whole claim from the other debtor. But the Chancellor con-
ceived that to avoid circuity of action, and do justice to all, it was
proper to charge the infant only his just proportion; or to admit
the claim against the estate for only a just proportion. Were