WATKINS v. WORTHINGTON.—2 BLAND. 499

v. Kelsall,8 Cond. Cha.. Rep. 61; Powys. Mansfield, 9 Cond. Cha.
Rep. 445; 1785, eh. 72, s. 5. In case the creditor establishes the
claim, and the heir or devisee does not allege and shew a sufficiency
of personal estate to pay the debts, this law leaves to the Court no
discretion whatever; it must decree a sale of so much of the realty
as may be sufficient to satisfy the debt for which it has been thus
shewn to be liable. This law not only leaves to the Court no dis-
cretionary power to refuse to sell: but it is strongly indicated, by
its terms, that the debt is to be satisfied out of such real assets,
without any condition or reservation whatever, according to the
full extent of the legal liability of the deceased debtor: that the
contract of the creditor is to be, in no respect, embarrassed or im-
paired, and that he is, without delay, to obtain satisfaction from
the real assets of the deceased, in as complete and ample a man-
ner as he could have had against the debtor himself, were he then
alive.

I am therefore satisfied, that this first position, as to the discre-
tionary power of the Court, upon which these principles in relation
to the distribution of the real assets of a deceased debtor have
been rested, must altogether fail.

Another position taken in support of these principles, is, upon
the general rule in equity, that where a debt is joint and several, the
creditor should bring each of the debtors before the Court. The
reasons for which general rule are. that such debtors are entitled
to the assistance of each other in taking the account; that it is ne-
cessary to prevent circuity of action; because the Court may decree
over as between the defendants according as they may be entitled
to contribution in paying the debt: or where one may have paid
more than his share; and that if they are different funds, as where
the real and personal assets are in the hands of the heir, and exe-
cutor, who are to that extent both liable, the creditor must make
both of them parties, as the personalty must be first applied to
the satisfaction of his claim, and the realty only in aid of, and so
far as may be necessary to make up-the insufficiency of the per-
sonal estate. The exceptions to this rule are, first, where those
of the obligors who have not been made parties are only sureties;

*secondly, where it plainly appears and is admitted, that
nothing has been paid, and that the co-obligor is insolvent; 523
thirdly, where it clearly appears and is admitted, that there are
no personal assets, the personal representative need not be made a
party; and lastly, where the creditor had obtained judgment at
law against the one of the several obligors who is the defendant in
equity, it is not necessary to bring the other obligors before the
Court, because the bond is drowned in the judgment. Jackson v.

Rawlings, 2 Vern. 195; Galton v. Hancock, 2 Atk. 436; Madox v.
Jackson, 3 Atk. 406; Anger stein v. Clark, 2 Dick. 738; Cockburn v.
Thompson, 16 Ves. 326; Morrice v. The Bank, Ca. Tem. Tal. 222;