HAMMOND v. HAMMON0. 325

By a British statute, passed in the year 1732, and which appears
to have been introduced and practised under here so early as the
year 1740, it is expressly declared, that the real estate of a debtor
shall be assets for the satisfaction of all just debts, duties or de-
mands of what nature or kind soever, in like manner as real estates
are by the law of England, liable to the satisfaction of debts due by
bond or other specialty, and shall be subject to the like remedies
for seizing, extending and selling the same, and in like manner as
personal estate, (h) From which, it would seem, to be impossible
to avoid coming to the conclusion, which has been so perfectly
well settled in regard to bond creditors, that a suit, at common
law, under the positive provisions of this statute, might be sus-
tained by a simple contract creditor, as well as by a bond creditor,
against the heir, grounded merely on the fact of real assets having
descended to him. Yet it appears to have been always held, that
this statute should not be so construed as to authorize such a suit
on that foundation alone by a simple contract creditor; and it has
been adjudged accordingly, that a simple contract creditor cannot
sustain an action of assumpsit against the heir merely in respect
of real assets descended; although he might maintain such an
action if the heir had, in respect of such assets, made an express
promise to pay^(i) The reason of a construction apparently in such
direct opposition to the express letter of this statute, requires some
explanation.

At common law, lands were liable in the hands of the heir for
the debts of his ancestor, due by specialty, in which the heir was
bound; and they were also made liable by several English statutes
giving an extent or elegit, which had been adopted here, (j) before
the introduction of the statute of 1732, making lands in the colo-
nies liable to be taken in execution for debt. In England a bond
creditor, after the death of his debtor, might sue the executor, or
the heir separately at common law; or he might file a bill in equity
against both, in which suit all the specialty creditors of the de-
ceased might come in and participate. But although the common
law, after lands were made liable to be taken in execution for debt

(h) 5 Geo. 2, c. 7; Davidson's Lesee v. Beatty, 3 H. & McH. 612; Lands in
England have been since made liable for simple contract debts, by a statute passed
in the year 1834, 3 and 4 W. 4, c. 100; Calvert on parties, 152; Ram. on assets,
226; Putnam v. Bates, 3 Cond. Cha. Rep. 355.—(i) Preston v. Preston, 1 H. & J.
366; Lodge v. Murray, 1 H. & J. 499; Gist v. Cockey, 7 H. &, J. 135.—(j) Kilty
Rep. 143, 144,151; 1715, ch. 23, s. 6.

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