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TESSIER 9. WYSE. 37
tors, claims a right to obtain satisfaction from the whole estate of
his deceased debtor, leaving the burthen to be adjusted, as between
the real and personal estate, as the law may allow, without preju-
dice to his or any other creditor's claims to relief.
The question then is, whether it is necessary in a creditor's suit,
like this, that it should not only be shewn at the hearing, but
distinctly stated and charged in the bill of complaint itself, that
the personal estate was insufficient to pay all the debts of the de-
ceased, and that the plaintiff had used all due diligence in endea-
vouring to obtain payment from the personalty, to enable him to
obtain satisfaction by a sale of the real estate ?
It is no less essentially necessary in a Court of Chancery, than
in a court of common law, that a plaintiff should distinctly set
forth every fact and circumstance which constitutes that title upon
which he asks relief. The forms of proceeding in Chancery, are,
in general, not so precise as at common law; but the several facts
which constitute a plaintiff's title to relief are matters of substance
which no court of justice can dispense with; they must, therefore,
be clearly shewn according to the prescribed forms of the tribunal.
It has long been universally understood, that all the property of
a debtor, real, as well as personal, without distinction or preference,
was liable in one form or other to be taken in execution and sold
for the payment of his debts. The necessity of applying to a
court of equity to set aside conveyances or other obstructions
fraudulently thrown in the way by a debtor, not being regarded as
an exception to the general rule. The death of a debtor is never
allowed to impair the obligation of his contract as respects his
estate, or in any way to alter, or lessen the liability of his pro-
perty, (c)
In a creditor's suit, instituted for the purpose of having a de-
ceased debtor's whole estate administered in equity, the requiring
all his representatives, his executor, or administrator with his
heirs or devisees to be brought before the court, has never been
deemed necessary upon any ground affecting the title of the credi-
tor; or upon any principle having any injurious bearing whatever
upon the creditor's rights. During the life-time of a debtor, his
creditor, who has obtained judgment against him, cannot be hin-
dered or delayed in the recovery of his debt, by being obliged to
take first one species of property, and then another, in execution,
m order to obtain satisfaction; since there is no one kind of a
(c) Owen P. Davies, 1 Ves. 82.
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