delivered the opinion of the court.
The action was brought upon the bond given by Alexander H. Dinkins and Sarah Branch, as administrator and adminis-tratrix of the estate of Armistead Branch, deceased. The suit was commenced against the principals and sureties, but discontinued at the trial as to all but Dinkins, the appellant.
The facts are briefly these. Some time in the year 1837, Armistead Branch, the intestate, as principal, William F. Walker, the relator, and others, as his sureties, executed two promissory notes for large amounts to Jeffrey & Crane. Armistead Branch having died before the year 1840, suits were brought in the circuit court of the United States at Jackson, upon said notes against Dinkins and Mrs. Branch, as administrator and administratrix of A. Branch’s estate. Judgments were recovered at the May term, 1840, of said court, and executions issued thereon, and were placed in the hands of the marshal, w7ho returned the same to the November term, 1840, of said court, in effect, nulla bona. It is also averred, that the administrator and administratrix received assets belonging to their intestate, amounting in value to the sum of $10,000, with which they could have paid the said judgments, or some part thereof.
The declaration also avers that the same plaintiffs, (Jeffrey & Crane,) at the November term, 1839, of the same court, recovered judgments against him, and that he was forced to pay the said judgments, by reason of the failure of the said administrator and administratrix to pay the judgments recovered against them, to be levied of the goods, chattels, &c. of the said A. Branch, deceased.
To the declaration containing these facts, Dinkins, the appellant, filed a demurrer, which was overruled by the court below, and judgment with writ of inquiry rendered against *291him. This writ of inquiry was executed at the April term, 1849, of the Madison circuit court, when a jury assessed the damages against appellant at $4000, for which amount the court rendered a judgment in thé usual form.
Upon this state of facts, the question presenting itself for our consideration is, whether Walker, the relator, can maintain this action for a devastavit, before establishing his demand against Branch’s estate, by a judgment to be levied of the goods and chattels, &c. in the hands of the administrator and administratrix, to be administered. Upon a careful examination of all the authorities, we have been able to find no case in which an action can be sustained at the instance of a creditor for a devastavit by the administrator, before a judgment recovered to be levied de bonis intestati. ' This point appears to be too well settled even to require citation of authority.
But it is insisted that this rule has been changed by the statute of 1830. Hutch. Code, 676. This statute provides that a suit may be brought by a person interested in the estate of a deceased person, as creditor or otherwise, on any bond given by administrators or executors and their sureties, jointly in the first instance ; and in no case shall a separate suit be necessary against any executor or administrator, for the establishment of a devastavit prior to the liability of such sureties. Prior to the passage of this statute, a separate suit was necessary against an executor or administrator, to establish a devastavit before an action could be sustained against the sureties on the bond. The statute merely dispensed with this separate action, and gave any person interested as creditor or otherwise, a right to bring a joint action against the administrator and sureties, in the first instance; and in this joint action established what could only be done before the statute in a separate action against the administrator.
It is, however, insisted by the counsel for the defendant, that' Walker, having paid the judgments recovered against him, stands in the attitude of a judgment creditor. A surety who pays a debt for his principal, only becomes a simple contract creditor. The fact that he was a surety, and as such paid the judgments, must be judicially ascertained before he can be *292regarded, in the light of a judgment creditor. It may be true that the surety would have, in a court of equity, a right to be substituted to all the rights of the plaintiffs in the judgments, as contended by counsel; but no question as to the equitable rights of the defendant can arise in this action, and we only feel ourselves called upon to decide such questions as the record presents.
The judgment reversed, demurrer sustained to the declaration, and cause remanded.