fJii WATKINS v. WORTHINGTON.

from the infant when he comes of age, or allowing him a day to
shew cause. The decree, sale, and conveyance by the trustee in
pursuance thereof, being made equivalent to a conveyance from
such heir or devisee, as of sound mind and full age. (w) In case
the creditor establishes the claim, and the heir or devisee does not
allege and shew a sufficiency of personal estate to pay the debts,
this law leaves to the court no discretion whatever; it must decree
a sale of so much of the realty as may be sufficient to satisfy the
debt for which it has been thus shewn to be liable. This law not
only leaves to the court no discretionary power to refuse to sell; but
it is strongly indicated, by its terms, that the debt is to be satisfied
out of such real assets, without any condition or reservation what-
ever, according to the full extent of the legal liability of the de-
ceased debtor; that the contract of the creditor is to be, in no
respect, embarrassed or impaired, and that he is, without delay, to
obtain satisfaction from the real assets of the deceased, in as com-
plete and ample a manner as he could have had against the debtor
himself, were he then alive.

I am therefore satisfied, that this first position, as to the discre-
tionary power of the court, upon which these principles in relation
to the distribution of the real assets of a deceased debtor have
been rested, must altogether fail.

Another position taken in support of these principles, is, upon
the general rule in equity, that where a debt is joint and several,
the creditor should bring each of the debtors before the court.
The reasons for which general rule are, that such debtors are enti-
tled to the assistance of each other in taking the account; that it
is necessary to prevent circuity of action; because the court may
decree over as between the defendants according as they may be
entitled to contribution in paying the debt; or where one may have
paid more than his share; and that if there are different funds, as
where the real and personal assets are in the hands of the heir,
and executor, who are to that extent both liable, the creditor must
make both of them parties, as the personalty must be first applied
to the satisfaction of his claim, and the realty only in aid of, and
so far as may be necessary to make up the insufficiency of the
personal estate. The exceptions to this rule are, first, where those
of the obligors who have not been made parties are only sureties;

(w) Orchard v. Smith, ante 318; Brook v. Smith, 6 Cond. Cha. Rep. 403; Kel-
sall v. Kelsall, 8 Cond. Cha. Rep. 61; Powys v. Mansfield, 9 Cond. Cha. Rep. 443.
1785, ch. 72, s. 5.