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38 TESSIER v. WYSE.
debtor's property which is privileged from being taken in execution
until another has been exhausted. It is clearly not necessary, in
any case, during the life of a debtor to exhaust his personal estate
as a means of coming at his realty, (d)
But if the objection now taken be well founded, then it neces-
sarily follows, that the death of a debtor materially curtails the
rights of his creditors; since on that event a creditor's title to
relief must depend not merely upon the fact of his debtor having
left property enough to pay all his debts; but upon the fact of its
being alleged and shewn, that his personal estate is insufficient for
that purpose; and also upon its being alleged and shewn, that he,
the plaintiff, had, with all due diligence, endeavoured to obtain
satisfaction from the personal estate of the deceased; in order
thereby to lay a foundation whereon to proceed against the realty.
Hence it follows, if this proposition be correct, that the rights
of a creditor are materially affected by the death of the debtor.
If the law be so, as between creditor and debtor, then it is cer-
tainly true, according to the general rule, that a plaintiff must set
forth every fact which constitutes any material portion of the title
upon which he asks relief, that he should, in a creditor's suit, ex-
pressly allege and shew, that the personal estate of his deceased
debtor was insufficient to pay his debts; and that he had used all
due diligence in endeavouring to obtain payment from his personal
estate to enable him to obtain a sale of his real estate for that
purpose.
The matter here presented is one of much importance, since it
is not confined to a mere form of practice; but involves the rights
of creditors generally; and therefore requires to be fully investi-
gated and carefully considered.
According to the common law, as between individuals, lands
were in no way liable to be taken in execution and sold for the
payment of debts, (e) This total exemption of real estate from
any such liability, it is said, was a necessary consequence of the
principles of the feudal system, which system, softened and di-
vested of most of its odious and pernicious principles, having
been incorporated into our code, (f) lands were, in like manner,
exempted here as in England from being taken in execution and
sold for the payment of debts, (g) According to the feudal sys-
(d) Hanson v, Barnes, 3 G. & J. 359,—(e) Bac. Abr. tit Execution A.—(f)
Chart. Maryl. art. 5, 18; Kilty Rep. 146,; 1786, ch. 45. s. 1; Calvert's lessee *.
Eden, 2 H, & McH. 279,366 —(g) Kilty Rep. 144.
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