318 HAMMOND v. HAMMOND.

had aliened the land before an action was brought, or of a devisee
of his debtor at any time, (s) To prevent this wrong and injury
to creditors, it was declared by an English statute, passed in the
year 1691, that the heir should be liable to the value of the land
descended to, and aliened by him; and that all devises should be
void, as against creditors; who should have the same right to sus-
tain an action of debt against such devisee, that they could have
had against the heir, (t) But as the relief, given by this statute, is
confined to those cases only where the creditor may recover by
action of debt; the common law, in other respects, remains un-
altered; so that no damages can be recovered of a devisee of the
land, for a breach of covenant made by the devisor, (u) This
English statute has been expressly recognized as one of the legis-
lative enactments of our code; (w) and, consequently, where a
creditor's suit is brought to charge any lands so devised, the heir
as well as the devisee, must be made a party; because it is the
statute alone which makes the land assets in the hands of the devi-
see; and that requiring the heir to be made a defendant at com-
mon law, the bill in this court must follow the remedy therein pre-
scribed, (x) But if the bill alleges, that the testator left no heirs,

(s) Solley v. Gower, 2 Vern. 61; Plunket v. Penson, 2 Atk. 291; Ex partet
Moreton, 5 Ves. 449; Bac. Abr. tit. Heir and Ancestor, F.—(t) 3 W. & M. c. 14.—
(u) Wilson v. Knubley, 7 East. 128.—(w) 1797, ch. 113.—(x) Gawler v. Wade, 1
P. Will. 99; Galton v. Hancock, 2 Atk. 432.

ORCHARD v. SMITH.—This bill was filed on the 31st of August, 1738, by John
Orchard, Robert Pearle, William Gumming, and Jonathan Davis, against John Smith
and Mary his wife, and Peter Hoggins. The bill states, that Gunder Erickson, de-
ceased, being, in his life-time, possessed of a considerable real and personal estate,
and being, at the same time, indebted to sundry persons, in order to pay his debts, in
case his personal estate should fall short, on the 17th of March, 1728, by his
last will devised as follows: 'It is my will and desire, that a certain tract of
land belonging to me, lying on Rock Creek, called Norway, containing six hundred
and thirty acres; and another tract of land containing two hundred acres, called Gar-
den's Delight; likewise two houses and lots in Nottingham, in Prince George's
county; and my right to a house and lot in Queen Ann Town, all be sold in order
to discharge the debts I owe ;' and then appointed his wife, the defendant Mary, his
sole executrix; that in a short time thereafter he died; that she, Mary, caused the
will to be proved; but renounced the administration thereof; whereupon letters of
administration, with the will annexed, were granted to the defendant Hoggins, who
acted as such accordingly; that the deceased was indebted to the plaintiff Orchard,
in the sum of £13 Is. 6d. current money; to the plaintiff Pearle, in the sums of
4,246 lbs. of tobacco, and £28 5s. Od.; that they severally sued the administrator
Hoggins, who pleaded that he had fully administered, whereupon they obtained
judgments against him therefor, when assets should come to his hands; that the de-
ceased was indebted to the plaintiff Gumming, in the sum of 2,638 lbs. tobacco; that

srfs