secondly, where it plainly appears and is admitted, that nothing has been paid, and that the co-obligor is insolvent; thirdly, where it clearly appears and is admitted, that there are no personal assets, the personal representative need not be made a party; and lastly, where the creditor had obtained judgment at law against the one of the several obligors who is the defendant in equity, it is not necessary to bring the other obligors before the court, because the bond is drowned in the judgment. (x)

But the cases in which this general rule is laid down, do not profess to declare, that the obligee, on a joint and several bond, may not sue one or both obligors; but that he may, if he pleases, sue one only, or all, as at law. For, if it were not so, there would be no difference in equity betwixt a joint bond, and one joint and several; and if any of the obligors have paid all or a part, the obligor who is sued, or his representative must bring a bill and have it allowed; and it must also lie upon him to compel the other obligors to contribute towards payment of the debt; not upon the creditor who lent his money upon a security that enabled him to sue the obligors severally, if he should think fit; and indeed, if it were otherwise, that which was intended to strengthen the security would tend to hurt it extremely; for the creditor might not be able to find out all who might thus be bound to him; because by the same reason, that all the other obligors themselves must be sued, if any of them were dead, their heirs as well as executors must be made parties; and then, as it would be difficult to commence the suit; so the suit, when commenced, would be subject to continual abatements, which would be a great difficulty on an honest creditor who had fairly lent his money. (y) But if these principles are to be sustained by any thing to be deduced from this general rule, that all persons interested must be made parties; then it would be indispensably necessary, in every creditor's suit, when a creditor presented a claim, for the satisfaction of which the deceased with others had been bound, that such creditor should be permitted and required, in some way, to make all the co-obligors of the deceased parties to the same case; for

(x) Jackson v. Rawlins, 2 Vern. 195; Galton v. Hancock, 2 Atk. 436; Madox v. Jackson, 3 Atk. 406; Angerstein v. Clark, 2 Dick; 738; Cockburn v. Thompson, 16 Ves. 326; Morrice v. The Bank, Ca. Tem. Tal. 222; Higgens' Case, 6 Co. 45; Bidleson v. Whytel, 3 Burr. 1548; Drake v. Mitchell, 3 East. 258; Riddle v. Mandeville, 5 Cran. 330.—(y) Collins v. Griffith, 2 P. Will. 313; Ex parte Rowlandson, 3 P. Will. 405; Haywood v. Ovey, 6 Mad. 113.

otherwise, it would be impossible, or improper, or unsafe, according to the reasons of the principles of the court to decide upon the relative equities of the deceased debtor whose representatives were then before the court and his co-obligors; without compromiting the interests of some, or doing gross injustice to the creditor.

Under our system of partible inheritances the difficulties which beset a creditor's bill, by which it is necessary to bring before the court a large family of heirs and devisees of a deceased debtor, together with his executors or administrators, have been found to be so very great, that it has been attempted to remedy the evil by requiring the heir at common law alone to be served with process, and allowing all the others to be called in, by a general publication, and to appear or not as they might think proper. (z) There is, however, no instance to be found in the English books, nor among the records of this court, of a creditor's suit, in which it was ever proposed to make a co-obligor of the deceased debtor a party to the suit. But if, in addition to the family of representatives of the deceased debtor himself, the families of his co-obligors, were, in like manner, allowed, or required to be brought before the court by each of the creditors to whom they were bound, the parties would be innumerable, abatements would be continual, the suit would be interminable, and justice suspended and withheld forever.

This general rule, that all persons interested must be made parties, is, however, made to yield where necessary in the instance either of plaintiffs or defendants; since the rigid enforcement of it would lead to perpetual abatements, and in many cases amount to an absolute denial of justice. In all such cases the rights of the omitted parties are held to be established or bound by the decree; and although, in England, an inconvenience arises, as to the omitted parties, where a specific performance, or a conveyance may be required of all; (a) yet even that difficulty has been, in a great measure, removed by our act of assembly which declares, that in all cases where a decree shall be made for a conveyance, release, or acquittance, and the party shall neglect or refuse to comply therewith, such decree shall stand, be considered, taken, and have the effect of the conveyance, release, or acquittance so ordered. (b) Hence, as it would be difficult or impracticable, and therefore is

(2) 1797, ch. 114; Kilty v. Brown, ante 222.—(a) London v. Richmond, 2 Vern. 422; Meux v. Maltby, 2 Swan. 284; Newton v. Egmont, 6 Cond. Cha. Rep. 346.— (b) 1785, ch. 72, s. 13; 1826, ch. 159.

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not necessary to bring all the co-obligors of the deceased before the court; it is manifest, that these principles can derive no support from this rule which requires every one interested to be made parties, to the end that complete justice may be done among all.

But this general rule which requires each debtor, bound by a joint and several obligation to be brought before the court, although it may, to a certain extent, be well founded as to cases where a single creditor sues his living debtors only, or sues one of his joint debtors together with the representatives of another, who is dead, for the recovery of no more than his own particular debt; yet it cannot be applied to a suit, the especial object of which is to have the whole estate of the deceased sold for the payment of his debts; or so much of it as may be necessary for that purpose. A creditor's suit, or a bill which presents a case which requires to be treated as a creditor's suit, does not profess to be a demand of payment by a single creditor for himself alone; but is a call upon the court to cause the assets, real and personal, of a deceased debtor to be accounted for and administered in due course of law for the benefit of all the creditors of the deceased. This is the nature of a creditor's suit according to the English law as well as the law of Maryland; and it is expressly declared by our act of assembly, with an evident reference to a creditor's suit, that the real assets shall be administered by the heir, of full age, in the same order as the personal assets are directed to be applied in payment of debts by an executor; and that all courts of law and equity shall observe the same rules. (c)

It was the course of this court for some time after the establishment of the republic, in a creditor's suit, merely to decree in general terms, that in so far as the deceased debtor's personal estate should be insufficient to pay his debts, his real estate should be sold for that purpose; to appoint a trustee to make the sale, after he had given bond for the faithful discharge of his trust; and to direct him to pay the debts due to the originally suing creditors, whose claims were established by the decree; but, as to all other claims and every other matter, leaving to him the same extent of discretionary authority in the administration of the proceeds of the sale of the real assets as that allowed to an administrator of the personalty; or in other words, giving him the power to dispose of and distribute the proceeds of the sale of the real estate in due

(c) 1785, ch. 80, s. 7.

course of law; without requiring them to be brought into court; and without calling on the creditors to file the vouchers of their claims in the chancery office in order to have them passed upon and sanctioned by the court. (d) This course of proceeding was altered about forty years ago, and since that time the proceeds of the sale of the real estate have been always ordered to be brought in; and the creditors called before the court, that the rights of each and the conflicting interests of all might be adjusted by the court itself, and a distribution made among them accordingly.

Hence, it appears from a review of the course of proceeding in this court on creditors' bills, under all the mutations and improvements it has undergone, and from the legislative enactments in relation to the subject, to have always been a settled general principle, that the real assets were to be administered by the heir, or by this court, in like manner as an executor was required to administer the personal assets. But there is no instance, where, in a suit against an executor, either at law or in equity, the suing creditor has been told, that before he could be allowed to obtain a judgment or decree for satisfaction, he must shew that the late

(d) Bond v. Bond, ante 353; Mildred v. Neill, ante 354.

DORSEY V. COOKE.-This bill, filed on the 24th of November, 1786, very briefly states, that Ambrose Cooke died, indebted to the plaintiff, who brought suit and recovered judgment against his executrix for his debt, when assets should come to hand; that the executrix had paid away the whole of the personal estate of the deceased, who left some real estate; and that the defendant was his heir, and a minor. Upon which it was prayed, that the land might be sold for the payment of the debts of the deceased. The defendant answering by his guardian ad litem, admitted the truth of the allegations of the bill.

16th October, 1789.-HANSON, Chancellor.-Decreed, that the land be sold for the payment of the just debts of the said Ambrose Cooke, deceased, in due course of administration; that William H. Dorsey be the trustee, &c., to sell the said real estate, or such part thereof, as may be necessary, for the purpose aforesaid; and the manner of his proceeding shall be as follows: he shall first give three months notice in the Baltimore and Georgetown newspapers, and by advertisements set up at the most public places in the county, to the creditors of the said Ambrose Cooke, to bring in to the said trustee their respective claims legally proved. And he shall give six weeks notice in like manner, of the time, place and terms of sale, &c. that the said trustee shall lodge in this court under his hand, with his affidavit of the truth thereof annexed, a just and accurate account of the sales, specifying to whom made, with the time and price; and specifying also, his disbursements, payments and applications of the money; and the said trustee shall apply of the produce of the sale, such part as may be necessary to the discharge of the just claims of the creditors of the said Ambrose Cooke, in due course of administration, after deducting thence all the legal costs of this suit, and his just expenses, and commission of five per cent. allowed hereby to himself, &c.-Chancery Proceedings, lib. S. H. H. lett. B. fol. 744.

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 general 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; because such a creditor has or had it in his power, since the ancestor'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 creditor had accepted from his debtor an assignment of a bond, note, or chose in action, 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, available; 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. 311; Powel Mortg. 1083; Hoffman v. Johnson, 1 Bland, 103; Dorsey v. Campbell, 1 Bland, 356.