
    *Booker’s Exrs. v. M’Roberts, &c. Exrs. of Coutts.
    [Tuesday, May 15th, 1798.]
    Executors — Action oí Debt — Replevin Bond. — Executors may maintain an action of debtupon a three months’ replevy bond payable to their testator.
    This was an action of debt brought in the District Court of Prince Edward upon a three months’ replevy bond. The declaration was in the common form of a declaration upon a -bond for payment of money. Plea, conditions performed, and issue. The jury found a verdict in these words: “We of the jury find for the plaintiffs the debt in the declaration mentioned, to be discharged by the payment of- 651. 11s. 3d. with interest from the 21st day of Eebruary, 1775; if the Court shall be of opinion that an action of debt can be maintained by the plaintiffs in this Court in this cause, it being a three months’ replevy bond, taken under an execution on a judgment obtained in the County Court of Halifax, under an act of Assembly, entitled, an act, declaring the law concerning executions, and for relief of insolvent debtors, passed in the year 1748: but, if the Court shall be of a contrary opinion, we then find for the defendants.” The District Court gave judgment for the plaintiffs; and the defendants appealed to this Court.
    M’Craw, for the appellee.
    The executors had no remedy by motion under the act of Assembly; and, therefore, they were obliged to resort to an action upon the bond.
    Washington, contra.
    In several instances in this Court, it has been decided, I admit, that where a forthcoming or replevy bond was void as a statutory bond, that the obligee might, nevertheless, maintain an action at the common law, upon the bond. Hewlett v. Chamberlayne, [1 Wash. 367,] Meriwether v. Johnson, [3 Call, 523,] and Bibb v. Cawthorne, [1 Wash. 91,] were of that kind. But where the bond is good as a statutory bond, the party must pursue the remedy by statute. [Hollingworth v. Ascue,] Cro.
    
      EJliz. 355. It is objected, however, 244 that the ^executors could not sustain ■ a motion on the bond. But, if they have a right to the contents of the bond, they must have a remedy to recover them also.
    
      
      See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6; and monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
    
   PENDLETON, President.

After stating the case, delivered the resolution of the Court as follows:

The Court think it immaterial whether the creditor had or had not a remedy by motion, under the act of Assembly, [c. 12, g 14, 5 Stat. Larg. 534,] since the act having no negative words, the creditor had his election to pursue the statutory mode, or his common law remedy on the bond.

Judgment affirmed.  