446 DORSET v. HAMMOND.—1 BLAND.

But it is said to be an established principle of this Court, that
where it appears, upon the face of the voucher, that the creditor
may or can obtain payment, by pursuing another and more proper
person or fund, he shall not be permitted to come here, and par-
take of the realty to the prejudice of the heir or of other credi-
tors. It is upon this ground, that an obligee is turned aside to
seek payment of the whole or a proportion from a principal, or a
co-surety who is solvent. These creditors have established their
claims as against the personalty, or natural fund, of the sufficiency
of which to satisfy them, their judgments afford conclusive evi-
dence. If they now leave it and obtain satisfaction from the
realty, what is to become of the amount of personalty which
their judgments prove to exist in the hands of the executors ? Is
the executor to be suffered to retain it, or is the heir to be allowed,
upon the principle of substitution, to obtain it? But the demand
of a creditor upon the heir is always and must necessarily be
founded upon the fact, that the personalty is not sufficient to sat-
isfy the claim. These considerations have convinced me, that the
auditor's objection is correct, and that these * claims Nos. 3,
473 4, and 5, ought not to be allowed to partake of the pro-
ceeds of the realty.

Whereupon it is ordered, that the said claims, designated by
the auditor as Nos. 3, 4, and 5, be and the same are hereby re-
jected. And the auditor is directed to re-state the account accord-
ingly.

George Barber, whose claim had been stated as No. 3, and Charles
Waters, whose claim had been stated as Nos. 4 and 5, filed their
several petitions, on the 7th of July, 1828, without oath, in which
they alike state, that it was in their power to show, by evidence
not now in the proceedings, that the personal estate of the deceased
had been exhausted in the payment of other just debts; that the
executor was insolvent; and that his sureties might be relieved in
equity. Whereupon they prayed, that they might be allowed to
adduce further proof, and that the order of the 22nd of March
might be rescinded, &c.

BLAND, C., 8th July, 1828.—These petitions do not allege, that
there is any error apparent upon the face of the decision of the
Court; nor do they set forth and aver, that the petitioners have
discovered any new testimony, not known to them at the time the
opinion of the Court was delivered; consequently, independently
of the want of any affidavit to their petitions, they have laid no
foundation for a bill of review, even if they had asked leave to file
such a bill; or this were a case in which such a form of proceeding,
or something equivalent to it, would be proper. Nor is it stated
in these petitions, that there has been any mistake, oversight, or