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28 TESSIER v. WYSE.
gence, they certainly might have brought before the court in this
suit, in a course of thirty-two years, which has elasped since his
death, every particle of that competent and sufficient testimony
which the petitioner says might even yet be obtained. It is not
enough to shew that injustice has been done in any instance, even
supposing a case of that sort to have been exhibited by the peti-
tioner, but that it has been dome under circumstances which autho-
rize the court to interfere. The court must see that injustice has
been done, not merely through the inattention of a party, but
that owing to some peculiar state of things, he could not have
sooner availed himself of his means of relief; that he was ignorant
of his proofs, or that the matter on which he relies, could not have
been sooner or otherwise brought before a court of justice for ad-
judication, (u) In fine, I am entirely satisfied that the prayer of
the petitioner ought not to be granted.
Whereupon it is Ordered, that the said petition, filed by John
Glenn, administrator de bonis non of the late Stephen Casenave,
and also the said supplemental petition, be and the same are here-
by dismissed, with costs to be taxed by the register.
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TESSIER v. WYSE.
A creditor is not bound to use active diligence against his debtor. The plaintiff in
a creditor's suit is not hound to allege and shew, that he had used any degree of
active diligence, or that the personal estate of his deceased debtor was insufficient
to pay his debts in order to have his real estate sold for that purpose. The suffi-
ciency of the personal estate of the deceased to pay his debts, giving that ground
of equity upon which the realty is saved for the benefit of the heir or devisee, it
is with him alone to allege and shew that fact. The liability of heirs as terre-
tenants, and the equity between them as to contribution. Where the obligor binds
himself and his heirs, the land descended is liable in the hands of the heir; but
if there be personal estate, and the heir pays the debt, he may be reimbursed
front such personalty, upon the ground of its being the primary and natural fund
for the payment of debts. The casts in which the parol shall demur during the
infancy of a party.
In a creditor's suit, by a bond creditor, independently of any statutory provision,
At personal estate was always first applied, as far as it would go, to saw the
realty; and the statute making lands liable to be taken in execution ami sold for
the payment of debts, has made no alteration as to any creditors in that respect;
(u) Bateman v. Willoe, 1 Scho. & Lefr. 204; Kemp v. Squire, 1 Ves. 206; Stanard
v. Rogers, 4 Hen. & Mun. 439; Winston v. Johnson's executors, 2 Mun 305; Erwin
v. Vint 6 Mun. 267.
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