WATKINS v. WORTHINGTON. 527

obligor was the principal debtor; or if a surety, that his principal
or co-surety, was insolvent; and yet, if the principles of this court
be correct, they should certainly be as fully applicable in a suit at
law or in equity against a personal representative, as in a suit against
the heir or holder of the realty. Consequently, it is evident, that
these principles of this court, are incompatible with the spirit, if
not the very letter of our legislative enactments, and with the gene-
ral tenor of those rules, according to which the assets of a deceased
debtor are administered in every other court.

A third ground assumed in those decisions of my predecessors,
is, that where the debt appears to have been contracted by the
deceased, jointly with another who is solvent, the court should
refuse to suffer the creditor to have an infant's estate sold; be-
cause such a creditor has or had it in his power, since the ances-
tor's or devisor's death, to recover the whole claim from the other
debtor.

In considering this position, it will be necessary to recollect,
that it was originally and has always been applied to cases of mere
personal transitory contracts, by which two or more are bound by
the terms of the contract for the payment of money. It has not
been exclusively applied to those cases where the creditor had
received from his debtor a pledge or pawn of property, which he
stipulated to have appropriated to the satisfaction of his claim in
the first instance, before he made any personal demand upon his
debtor; nor has it been confined to those cases in which the cre-
ditor had accepted from his debtor an assignment of a bond, note,
or chose in action j as a conditional payment, where, by the terms
of the contract, the creditor is bound to use due diligence, in order
to make the means of satisfaction, so placed in his hands, avail-
able; or excuse himself by shewing, that the pawn has been found
insufficient, or that the debtors bound by such assigned chose in
action, are insolvent, and that he has actually returned, or is, and
has always been able and ready to return the chose in action so
assigned. It cannot be denied, that the principles of the court so
far as they have a direct bearing upon such cases as these, are
sustainable by the clearest reason and equity; and indeed, have
been enforced in courts of common law as well as in this court, (e)

(e) Kearslake v. Morgan, 5 T. R. 513; Clark v. Young, 1 Cran. 181; Harris v.
Johnston, 3 Cran. 811; Powel Mortg. 10S3; Hoffman v. Johnson, 1 Bland, 103;
Dorsey v. Campbell, 1 Bland, 356.