WATKINS v. WORTHINGTON.—2 BLAND, 503

altered about forty years ago, and since that time the proceeds of
the sale of the real estate have been always ordered to be brought
in; and the creditors called before the Court, that the rights of
each and the conflicting interests of all might be adjusted by the
Court itself, and a distribution made among them accordingly.

Hence, it appears from a review of the course of proceeding in
this Court on creditor's bills, under all the mutations and improve-
ments it has undergone, and from the legislative enactments in
relation to the subject, to have always been a settled general prin-
ciple, that the real assets were to be administered by the heir, or
by this Court, in like manner as an executor was required to ad-
minister the personal assets. But there is no instance, where, in
a suit against an executor, either at law or in equity, the suing
creditor has been told, that before he could be allowed to obtain a
judgment or decree for satisfaction, he must shew that the late
* obligor was the principal debtor; or if a surety, that his 527
principal or co-surety, was insolvent; and yet, if the priu-
eiples of this Court be correct, they should certainly be as fully
applicable in a suit at law or in equity against a personal repre-
sentative, as in a suit against the heir or holder of the realty.
Consequently, it is evident, that these principles of this Court, are
incompatible with the spirit, if not the very letter of our legisla-
tive enactments, and with the general tenor of those rules, accord-
ing to which the assets of a deceased debtor are administered in
every other Court.

A third ground assumed in those decisions of my predecessors,
is, that where the debt appears to have been contracted by the
deceased, jointly with another who is solvent, the Court should
refuse to suffer the creditor to have an infant's estate sold; be-
cause such a creditor has or had it in his power, since the ances-
tor's or devisor's death, to recover the whole claim from the other
debtor.

In considering this position, it will be necessary to recollect,
that it was originally and has always been applied to cases of mere
personal transitory contracts, by which two or more are bound by
the terms of the contract for the payment of money. It has not
been exclusively applied to those cases where the creditor had
received from his debtor a pledge or pawn of property, which he
stipulated to have appropriated to the satisfaction of his claim in
the first instance, before he made any personal demand upon his
debtor; nor has it been confined to those cases in which the cred-
itor had accepted from his debtor an assignment of a bond, note,

charge of the just claims of the creditors of the said Ambrose Cooke. in due
course of administration, after deducting thence: all the legal costs of this
suit, and his just expenses, and commission of five per cent, allowed hereby
to himself, Sec.—Chancery Proceedings, lib. S. H. H. lett. B, fol. 744.