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50 TESSIER v. WISE.
simple contract creditors, that it had before applied to cases arising
on the claims of specialty creditors, And consequently, it never,
in any case, threw upon a creditor the necessity and burthen of
alleging and proving the insufficiency of the personal estate of the
deceased, as forming an essential part of his title to obtain satisfac-
tion by a sale of the realty; because that was a fact which, from
the nature of things, unacquainted as he must be with his debtor's
private affairs, it would, in most cases, be impracticable for him to
shew; and was, therefore, a matter with which he had no concern.
And as equity is bound to follow the law, the court could not upon
any principle whatever throw upon the creditor any such burthen.
The allegation of the sufficiency of the personal estate can only
come from the heir, because it would be of no avail to any other
party; and as the benefit which the heir was allowed to derive
from it, was only as against the personal estate, the issue as to the
truth of such allegation was therefore, one which could only, with
propriety, be made up between the heir and the executor or admi-
nistrator. The first clause of this act of Assembly, it is evident,
merely refers, in general terms, to these principles of equity, with-
out making the least change in any of them, or intimating, that a
creditor, in suing by bill in Chancery, was to encounter any new
obstacle in any form. So far, therefore, this act of Assembly re-
cognizes and affirms the then existing law without making any
alteration in it whatever.
In regard to persons non compos mentis, as spoken of in this act,
it will be sufficient to observe, that although the Chancellor, in the
exercise of Ms jurisdiction, in cases of lunacy, has no power to
exempt either the person, or the estate of the lunatic from the
claims of his creditors; yet, where circumstances permitted, it had
always been deemed to be within the scope of his authority so to
order the management, or sale of a lunatic's estate as to secure to
him a maintenance from the proceeds of his property; and, for
that purpose, to postpone the payment of his debts by an imme-
diate sale or application of the capital of his estate as far as prac-
ticable. (t) It is to these dilatory proceedings of the court, for
the benefit of persons non compos mentis, that this provision of this
act relates. And as it merely authorizes a sale to be made in cases
where, independently of this act, a sale might have been enforced
under the statute of 1732, this act must be understood as only in-
(I) Shelf. Luna. 356; Ex parte Dikes, 8 Ves. 79; Ex parte Philips, 19 Ves. 123.
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