
    *Haydon v. Goode et al.
    September, 1809
    i. Estate bf Decedent — Simple Contract Creditors — Sub-rogation to Rights of Bond Creditors. — A simple contract creditor shall receive out of the real assets descended to the heirs at law as much as has been paid to bond creditors out of the personal assets.
    
      3, Equity Practice — Heir Who Is Administrator- -Re-lie* írom. — The plaintii'i being both heir and administrator, and .seeking- to be relieved as administrator, Trill not be entitled to such relief, unless he will do equity as heir.
    3, Heir’s Liability for Clerk’s Fee. — An heir is not bound Xor Clerk’s fees and taxes due from the an cestor
    4. Executors and Administrators- Deficiency oi As= sets — Injunction.—An injunction in iayour of an executor or administrator on the ground of a deficiency' of assets, should not he perpetual; but only until assets shall come to his hands to satisfy the judgment, or any part thereof; reserving to the creditor liberty to shew such assets by a scire facias at law.
    The plaintiff was both heir and administrator of the same intestate, and, in the latter character, brought his bill to be relieved against several judgments at law. The case was upon a former hearing referred to one of the Commissioners of the Court, and he reported that the plaintiff had, out of the personal assets, paid some -of the bond creditors, and was in possession «Í real assets to a much greater amount. Among the debts which bound the heir, the Commissioner included some Clerk’s fees •and taxes: and now the cause came on to .be heard, and these questions were submitted by the counsel:
    1. Is the plaintiff entitled to relief without doing justice in both characters? and,
    2. Is the heir bound for Clerk’s fees and taxes?
    
      
      Estate of Decedent — Marshaling Assets. — A creditor having the choice of two funds, ought to exercise his. right of election in such a manner as not to-injure other creditors, who can resort to one only of those funds; but if he, in the exercise of his legal rights, exhausts that to which alone other creditors can resort, equity will place them in his situation, so far as he has applied their funds to his claim. And in the application of this principle, simple contract creditors will be substituted to the rights o£ specialty creditors. Alston v. Munlorü, 1 Fed. Gas. 58:2, citing Haydon ¶. Goode, i Hen. >6 M. 460.
      See monographic note on "Marshaling Assets’" appended to Carrington v. Didier, 8 Gratt. 260; monographic note on “Subrogation" appended to Janney v. Stephens, 2 Pat. & H. 11.
    
    
      
       Exeeutors and Administrators. — See monographic note on “executors and Administrators" appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
       Injunctions. — See monographic note on “Injunctions” appended to Clay tor v. Anthony, 15 Gratt. 518.
    
   By the Chancellor.

As to the first question, it is a well settled principle, that simple contract creditors shall receive out of the real assets, as much as has been paid to bond creditors out of the personal assets; and, as the plaintiff is asking equity, he must do it; and upon this maxim, he shall not be relieved as the administrator of the intestate, until, as heir, he shall also do what is right, without turning the defendants round to either a cross-bill or another suit. Upon payment, therefore, of so much to the defendants, (as simple contract creditors, ) as was paid to the bond creditors out of the personal assets, the injunction, as to the balance of the defendant Burtis’s judgment, may be continued until assets shall come to the hands of the plaintiff, sufficient to pay the same, or any part thereof, which the said Burtis may be at liberty to shew, at any time hereafter, by a scire facias at law for that purpose. (Vide (Netherland et al. against Ronald’s Administrator. The Court of Appeals in that case said, that there was error in '"'the decree of this Court, as pronounced by the former Chancellor, in .awarding a perpetual injunction to the judgment which was enjoined, instead of permitting the appellant to proceed thereon, upon future assets, if any accrued beyond the balance then in hand. MS. Co. Ap.) And as to the second question, it is clear, that for Clerk’s fees and taxes, the heir is not bound: and therefore, such claims should not have been placed with bond creditors. N. B. There were but two simple contract creditors, one of whom had a judgment against the plaintiff for a devastavit, and he was allowed to be first paid on that account.  