TESSSIER P. WYSE.—3 BLAND. 27

Court of equity to set aside conveyances or other obstructions
fraudulently thrown in the way by a debtor, not being regarded as
an exception to the general rule. The death of a debtor is never
allowed to impair the obligation of his contract as respects his
estate, or in any way to alter, or lessen the liability of his property.
Owen v. Davies, 1 Ves. 82.

In a creditor's suit, instituted for the purpose of having a de-
ceased debtor's whole estate administered in equity, the requiring
all his representatives, his executor, or administrator with his
heirs or devisees to be brought before the Court, has never been
deemed necessary upon any ground affecting the title of the credi-
tor; or upon any principle having any injurious bearing whatever
upon the creditor's rights. During the life-time of a debtor, his
creditor, who has obtained judgment against him, cannot be hin-
dered or delayed in the recovery of his debt by being obliged to
take first one species of property, and then another, in execution,
in order to obtain satisfaction; since there is no one kind of
a * debtor's property which is privileged from being taken 38
in execution until another has been exhausted. It is clearly not
necessary, in any case, during the life of a debtor to exhaust his
personal estate as a means of coming at his realty. Hanson v.
Barnes, 3 G. & J. 359.

But if the objection now taken be well founded, then it necessa-
rily follows, that the death of a debtor materially curtails the
rights of his creditors; since on that event a creditor's title to re-
lief must depend, not merely upon the fact of his debtor having
left property enough to pay all his debts; but upon the fact of its
being alleged and shewn, that his personal estate is insufficient for
that purpose; and also upon its being alleged and shewn that he,
the plaintiff, had, with all due diligence, endeavored to obtain
satisfaction from the personal estate of the deceased; in order
thereby to lay a foundation whereon to proceed against the realty.

Hence it follows, if this proposition be correct, that the rights of
a creditor are materially affected by the death of the debtor. If
the law be so, as between creditor and debtor, then it is certainly
true, according to the general rule, that a plaintiff must set forth
every fact which constitutes any material portion of the title upon
which he asks relief, that he should, in a creditor's suit, expressly
allege and shew, that the personal estate of his deceased debtor
was insufficient to pay his debts; and that he had used all due dil-
igence in endeavoring to obtain payment from his personal estate
to enable him to obtain a sale of his real estate for that purpose.

The matter here presented is one of much importance; since it is
not confined to a mere form of practice; but involves the rights of
creditors generally; and therefore requires to be fully investigated
and carefully considered.