348 HAMMOND v. HAMMOND.

devisees must be made parties to enable the creditors to obtain
satisfaction out of such real assets, (t) Owing, however, to our
law of partible inheritances, much inconvenience arises, in some
cases, from the rule, that all the heirs and devisees must be made
parties; which the legislature has endeavoured to remove, by
requiring the heir, at common law only, to be summoned; and
allowing an order of publication against the rest, (u) But although
it is, in general, necessary to have the executor or administrator
before the court; either as a plaintiff, asking direction and indem-
nity, or as a suing creditor; (w) or as a defendant, to have an ac-
count of the personal estate, that it may be first applied as far as it
will go; yet if the debtor left no personal estate whatever, and that
fact plainly appears in the case; or the personal estate left by him,
was of so little value, that no one had taken out letters of adminis-
tration; (x) which fact of there having been no letters of adminis-
tration may be sufficiently shewn by a certificate of the register of
wills of the county in which the debtor died; (y) or if the executor
of the deceased debtor be dead and insolvent, a creditor's suit may
be sustained against the heirs and devisees of the deceased debtor
alone, without making his personal representatives defendants. (2.)
If the deceased debtor at the time of his death, was a partner
with others, then, upon the allegation of that fact; and because of
his assets having been so, during his life-time, mixed up with the
property of others, his surviving partners, upon whom the whole
had devolved, must be also made parties, in order, that the plain-
tiffs may have an account of the personal estate entire; and so ob-
tain, from the surviving partners, that which properly forms a part
of the assets of the deceased, (a) Where the bill charges, that by
collusion between the executor or administrator of the deceased,
and some third person the assets have been misapplied or wasted,
such third person will be held liable; and, therefore, should be

(t) Knight v. Knight, 3 P. Will. 331; Kenyon v. Worthington, 2 Dick. 668; Gal-
ton v. Hancock, 2 Atk. 435; Ashurst v. Eyre, 3 A.tk. 341; Madox v Jackson, 3
Atk. 406; Fordham v. Rolfe, 5 Cond. Cha. Rep. 257; Tyler v. Bowie, 4 H. & J.
f 333; David v. Grahame, 2 H. & G. 97.—(u) 1797, ch. 114; 1831, ch. 311, s. 10 and
11; Kilty v. Brown, ante 222.—(w} Wankford v. Wankford, 1 Salk. 304.—(a;) Wal-
ley v. Walley, 1 Vern. 487; Cowslad v. Cely, Free. Cha. 83; D, Aranda v. Whit-
tingham Mosely, 85; Heath v, Percival, 1 P. Will. 684; Ashurst v. Eyre, 2 Atk. 51;
Madox t5. Jackson, 3 Atk. 406; Will. Exrs. 227.—(y) Deshon v. Buchanan, 1 Feb-
ruary, 1819,—(r) Gregory v. Forrester, 1 McCord. 326; Riddle v. Mandeville, 5
Cran. 830.—(o) Bowsher v. Watkins, 4 Cond. Cha. Rep. 424; Holland v. Prior, 7
Cond. Cha. Rep. 22.