
    
      Braxton, Executor of Claiborn, v. Winslow &c. Surviving Justices of Spotsylvania County.
    April Term, 1791.
    Executors and Administrators -Actlon on Bond — Liability of Sureties. — An action may be maintained by a creditor of a deceased person upon the bond given by the executor for performing the duties of bis office ; but the plaintiff must first fix a dev-astavit against the executor, before he can resort to this remedy against the sureties.
    This was an action of debt, brought upon an executors bond against the securities in the bond, under an act of assembly, to subject them to the payment of a bill of exchange. The bill of exchange was drawn by John Spotswood, for £ 344. sterling, in favor of N. W. Dandridge, who endorsed it to Benjamin Waller, (the relator in the present action,) and was returned under protest. The drawer in the mean time had died, and appointed Bernard Moore his executor : and the suit was instituted upon the bond, at the instance of the endorsee, against Moore’s securities, without his having previously obtained a judgment against Moore the executor. It came into the Court of Appeals by writ of error, from the General Court. After oyer of the bond and condition, the defendants pleaded conditions performed. The replication' traverses the plea, and charges a breach in not having administered according to law, in this, that the said John Spotswood had drawn a bill of exchange payable to N. W. Dandridge who had endorsed it to Waller; that it was protested, of which protest, Bernard Moore, the executor, had notice, but had not paid it; having paid debts of inferior dignity after such notice, and wasted the assetts. Defendants rejoin by protestation, &c. and that Moore had not wasted the assetts. At the trial, one witness was examined, and the deposition of another read, as to the fact in issue : to which evidence there was a demurrer, stating the whole facts which proved the waste.
    The jury found that there was £ 1114, due to "Waller, the indorsee, upon the bill of exchange aforesaid, and that Moore the executor had wasted the assetts ; and assessed the plaintiffs damages to one penny : and upon argument, the demurrer was over-ruled by the comjt, and the judgment entered up for the penalty of the bond, to be discharged by the payment of £ 1114, according to the finding bf the jury, as to this breach.
    
      
      Husband and Wife — Survivorship.—The principal case is cited in Henry v. Graves, 16 Gratt. 248, 255; Wallace v. Taliaferro, 2 Call 470; Upshaw v. Upshaw, 2 H. & M. 389; foot-note to Drummond v. Sneed, 2 Call 491. See Robinson v. Brock, 1 H. & M. 213; monographic note on “Husband and Wife” appended to Cl eland v. Watson, 10 Gratt. 159.
      
    
    
      
      Executors and Administrators -Action on Bonds— Liability of Sureties. — For the proposition that, although a creditor may sue the executor or administrator on his bond for a devastavit, he must first fix such devastavit against the executor or administrator before he can go against the sureties, the principal case is approved in the following : Call y. Rulfin, 1 Call 334,335, and foot-note ; Taylor v. Stewart, 5 Call 524 (see note); Taliaferro v. Thornton, 6 Call 25; Gordon v. Justices of Frederick, 1 Munf. 7, 8, 9, 15, 18, 20: Spotlswood v. Dandridge, 4 Munf. 294, 295, 296, 298; Baker v. Preston, Gilm. 291: Munford v. Overseers of Poor, 2 Rand. 316, 317 ; Craddock v. Turner, 6 Leigh 125; Clarke v. Webb, 2 H. & M. 9; Com. v. Colquhouns, 2 H. & M. 241. See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6 ; and monographic note on. “Bonds” appended toward v. Churn, 18 Gratt. 801.
    
   By the Court.

In this case two questions are made at the bar, by the counsel for the plaintiff in error.

1st. Whether an action could be at all maintained upon the executors bond for the benefit of a creditor.

*2d. Whether this action can be maintained before a judgment first had by the plaintiff against the representatives of the debtor, and an execution and return of Nulla bona ?

The first is in truth no question. This bond is taken by particular direction of the act of 1748. No less than ten sections of that act are attentive to the testators estate, for the benefit of wives, legatees, next of kin, and creditors ; and one of them declares in express words, that this bond may be put in suit for their benefit. Of all those, whose rights may be involved in a testators estate, •a creditor is the most to be favored : his demand is ex debito justitiae and it- would be strange to say, that a section of an act, which gives a new remedy to this favored class by express words, was inserted in the act for no purpose. But an analogy is drawn from the St. 22 and 23 Charles 2, and authorities are cited to shew that the present action was in no wise maintainable. But most of these authorities are contradictory, and therefore deserve no credit: though in truth the latest authority, that from Douglas, is expressly in point that such an action is maintainable under that statute. But besides, our act of assembly differs from the English statute. It was argued, that great inconvenience might arise from countenancing such actions. That argument cuts both ways. Greater inconvenience would probably arise if such an action could not be maintained. But suppose the inconvenience on both sides equal; then inconvenience is no ground of decision. It is a rule of construction, that where a statute is ambiguously worded, Courts will be governed by arguments drawn from inconvenience : and will pursue the equity of the case arising under the statute : but, in this act, there is not one ambiguous word. The true question then is, has the relator Waller brought himself within the act ? or in other words, does it appear from the record, that he is a party injured within the words and meaning of the act. A man who claims as a creditor, and' means to take the benefit of this act, must shew himself to be a creditor ; that the testator left assetts ; that they came to the hands of the executor; that there was a sufficiency to discharge his demand, or so much thereof after paying debts of a higher dignity; and» that the executor has wasted the assetts. Without this concurrence, there is no injury done him.

An attempt was made at the bar to shew that the paying debts of an inferior dignity first, was of itself a devastavit; and, that a devastavit for .ever so trifling a sum, renders the executor liable to the whole demand, although assetts to the twentieth *part never came to his hands. But neither reason nor authorities warrant this doctrine : for surely if there be a sufficiency of assetts, it is of no consequence in what order they are paid. But the person who means to make use of this act, must shew himself to be a creditor in the usual course of law. It is not enough to produce a mere document of a debt; he must first institute a suit against the executor or administrator; because it is, in the first instance, a dispute between creditor and debtor whether, or no, a debt actually exist: dispute, which the securities to such a bond, who are strangers to the contract, are by no means competent to manage. It is a principle of universal law that both parties shall be heard. Bet us put this case : suppose A binds himself in a bond to pay B whatever sum C owes him (B) now before a forfeiture is incurred by A, must not B first prove by an action at law the sum that C actually owes him ? Mr. Waller therefore ought to-have shewn by an action brought against the executor that he was a creditor: he ought to have shewn by his action against Moore the executor, that he had committed a devastavit; a suggestion of a devastavit may be likened to a criminal prosecution : and an executor shall not be presumed guilty of a devastavit, till it is found against him by a verdict. It may be objected, that the act does not prescribe that a creditor shall not go against the securities in the first instance ; and therefore this action was well brought ; to which this answer presents itself, that it is an established principle of construction, that where a statute has given a new remedy, without pointing out the mode in which this remedy is to be attained, the rules of the common law, and the practice of the courts, founded upon the reason of the thing, shall be pursued. Therefore we are all of opinion that the judgment of the General Court must be reversed.  