Page:Harvard Law Review Volume 4.djvu/143

127 EQUITY JURISDICTION. 127 only as surety for the personal estate, which is the principal debtor. Therefore, though the creditor is entitled to go against the land or the personal estate, at his pleasure,^ yet, if he wish to go against the land in equity, he will be required to go against the personal estate at the same time, by making the executor a co-defendant to his suit, and praying relief against him as well as against the heir or devisee ; and thereupon the court will direct the personal estate to be applied in the first instance to the payment of the plaintiff's debt, and will direct so much only of the debt to be paid out of the land as shall remain unpaid after the personal estate has been exhausted.2 If, however, an heir or devisee could not be sued in equity by a creditor of his ancestor or testator, it would follow that three actions or suits might be necessary to accomplish what can be accomplished without difficulty by one suit in equity ; for the creditor might first sue the heir or devisee at law, and having thus obtained payment of his debt in part, he might then sue the exec- utor at law or in equity for the remainder ; and, lastly, the heir or devisee might, on the principle of subrogation, sue the executor in equity, and recover back what he had been compelled to pay; clearly, therefore, whenever a creditor who sues an executor in equity, is entitled also to call upon the heir or devisee for payment of his debt, he may make the latter a co-defendant to his suit, on the principle of preventing a multiplicity of suits. C C, Langdell. [To de contittued.'] 1 Quarles v. Capell, Dyer, 204 3, pi. 2; Davy v. Pepys, Plow. 438 a, 439 «; Davies v. Churchman, 3 Lev. 189. 2 Seton, Decrees (ist ed), 82, et seqq.