The plea is good, and the demurrer must be over-ruled; but you may, if you please, withdraw the demurrer and reply. Which was done accordingly.
Spuere of that part of the decision which holds the plea good. The heir ever since 32 Geo. 2, ch. 7, may be sued upon a note or open account as well as upon a specialty ; and he can no more turn the plaintiff around by a plea of assets in the executor’s hands, than he could if sued for a specialty debt before that act. The words of that act are, “ The houses, lands, and 44 other hereditaments and real estates, situate &c. shall be liable “■to, and chargeable with all just debts, duties and demands, of “ what nature or kind soever, owing by any such person, to his “ majesty, or any of his subjects, and shall and may be assets “ for the satisfaction thereof, in like manner as real estates are u by the law of England liable to the satisfaction of debts due by 44 bond or other specialty,” &c. As to applying the personal estate first, there never was such a rule at law ; for there the creditor was allowed to sue which of them he pleased first; I mean the executor or heir. 2 Atk. 426.