326 HAMMOND v. HAMMOND.

by extent, statute staple, and elegit, seems to have relaxed in
favour of the creditor so far as to let him in indifferently on the
real or personal fund at his election, it provided no means of de-
termining how the burthen should be borne as between the heir or
terre-tenant and the personal representative of the debtor. Here,
therefore, equity stept in; and considering the common law remedy
against the heir, and the statute provisions against the land as
instituted only for the sake of preventing the creditor from sustain-
ing a total loss of his debt; and that, therefore, the ancient com-
mon law notion, that the land should be considered only as a
dernier security for a debt to which the heir became subject on the
contract, in respect of real assets, if the personal assets failed,
furnished the true principle on which an adjustment ought to be
made, between the heir and executor, founded an equity upon that
common law notion; and thereupon substituted the heir in the
place of the creditor, and fixed the debt on the personal assets, if
sufficient, making the personal, as between the heir and executor,
exonerate the real estate. In which respect the Court of Chan-
cery, acting in conformity with its principles, that in all cases,
where there is a measuring cast between an executor and an heir
at law, held, that the latter should have the preference. There-
fore, although a creditor by specialty may, at law, sue either the
heir or executor-, and shall have the benefit of his security against
the one or the other, at his election; yet if the heir or devisee be
charged in debt, where the executor has assets, the former may
ultimately compel the latter, in equity, to pay the debt; unless he
can shew some special exemption by the act of his testator upon
which he ought to be discharged. (&)

After the adoption here of the statute of 1732r subjecting lands
to the payment of debts,, the phraseology of the writ of fieri facias
was altered so as to authorize the levying of it upon the goods
and chattels, lands and tenements, of the debtor; and the statute
was thus directly put into operation against living debtors accord-
ing to its very letter. But it was soon perceived,, that a statute,
so extensive in its bearing, could not be, in any similar way, lite-
rally applied to the estates of deceased debtors in the hands of
their heirs, without creating much confusion in the administration
of such estates; and without putting it in the power of each sim-

(&) Powel Mortg. 777, 779; Armitage v. Metcalf, 1 Cha. Ca. 74; Wolstan v.
Aston, Hardr. 511; Clifton v. Burt, 1 P. Will, 680; Edwards v. Warwick, 2 P.
Will. 175; Galton v. Hancock, 2 Atk. 435.