Page:Harvard Law Review Volume 5.djvu/150

134 HARVARD LAW REVIEW. directions in the dec'ree have been fully carried out, and the Master has made his report, and his report has been confirmed, the cause will be set down again, and a third and final decree will be made, the terms of which will be the same, mutatis mutandis, as those of the final decree in a suit against the executor alone. As soon as the second decree is made, all proceedings at law against the heir or devisee will be enjoined on the application of the latter, and for the same reason that all proceedings at law against the executor will be enjoined on his application as soon as the first decree is made ; l and it is somewhat remarkable that this principle was established as to heirs and devisees before it was established as to executors. 2 A creditor of a living debtor who has a lien upon the property of the latter for the security of his debt may first sue the debtor personally for the debt, and, if he fail to obtain payment in full by that means, he may then realize upon his security; or he may first realize upon his security, and, if that prove insufficient to pay the debt in full, he may then sue the debtor personally for what still remains due to him. If he be able to realize upon his secur- ity without a suit, an action at law against the debtor personally will give him, in either case, all the judicial assistance that he will need. But if he can realize upon his security only by a suit in equity (e.g., where a mortgagee can procure a sale of the mort- gaged property only by a suit in equity for that purpose), a suit in equity, as well as an action at law, will in each case be neces- sary; and the only question with the creditor will be whether he will first sue at law and then in equity, or first in equity and then at law. What is thus true of a creditor of a living debtor is also true, mutatis mutandis, of a creditor of a deceased debtor who has a lien upon property of the latter, except that, in the case of a creditor of a deceased debtor, one suit in equity against the representative or representatives of the debtor will answer every purpose. In such a suit, the bill may be framed just as it would be if the cred- itor had no security, 3 except that it will pray (by way of additional 1 Sumner v. Kelly, 2 Sch. & Lef. 398. See Farnham v. Burroughs, Dick. 63. 2 Martin v. Martin, 1 Ves. 211, 213. 8 And, therefore, it may be either for the plaintiff's exclusive benefit, or on behalf of the plaintiff and all the other creditors, though, if it seek relief against the real estate of the testator, it must, of course, be on behalf of all creditors who are entitled to such relief. See Bedford v. Leigh, Dick. 707.