
    Brown vs. M’Donald.
    A judgment was rendered against A, as principal, and B and C his sureties, upon which an execution issued and was levied upon property of the principal sufficient to discharge it. A executed to the sheriff a delivery bond, in which B, one of the sureties joined, but C, the other, refused to execute the bond or join therein. The bond was forfeited, and a judgment upon motion rendered thereon, against all the ‘parties thereto, (except the principal who had died.) B, the original surety paid this judgment: Held,
    1st. That the levy, and the execution of the delivery bond, was a satisfaction of the original judgment, and that no judgment could be rendered against C, (the surety who refused to join in the delivery bond:) and,
    2nd. That C being discharged, was not liable to contribute to B any part or portion of the money paid by him, and therefore the bill filed by him for the contribution was correctly dismissed by the court below.
    Whore B and C were sureties for A, and judgment was rendered against them all, upon which execution was issued and levied upon the property of A. B, one of the sureties, against the consent of A, joined in a delivery bond, thereby releasing the levy and extending the time of the payment: Held, that upon the same principle which would discharge the surety, when time is given by the creditor, the co-surety would also be discharged in this case.
    On the 10th day of September, 1830, Lewis H. Brown Thomas Brown, and Charles M’Donald made their writing obligatory to T. and G. W. Martin, for the sum of one thousand six hundred and thirty-seven dollars, and twenty cents, due the first day of February, 1831. Thomas Brown and Charles M’Donald were both securities in said bond. The bond was indorsed to E. Webb & Co., who brought suit against all the obligors and at the May term of the Giles county court obtained judgment against all the defendants. An appeal was taken to the circuit court, and Thomas R. Brown and Robert Oliver became securities for the prosecution of the appeal; and at August term, 1831, of the Giles county court, a judgment was obtained-against the original defendants and their securities for the prosecution the of appeal, for the sum of one thousand seven hundred and fifty-seven dollars, twenty cents. On the 23rd of September thereafter, afi.fa. issued on said judgment, and on the 12th of December, was levied by the sheriff of Giles, on the property of Lewis H. Brown, the principal in the original obligation, .to an amount sufficient to pay the debt. On the day of said levy, a delivery bond was taken by the sheriff for the delivery of the said property on the day and at the place of sale, executed by Lewis H. Brown, Thomas Brown, Thomas R. Brown, and E. D. Jones; but the defendant, -M’Donaid, refused to execute said bond, and did not sign his name thereto, and wished the sheriff to proceed to sell. The property levied on was not delivered, nor the debt paid, so that the bond was forfeited, and was by the sheriff returned with the fi. fa. to the February term, 1832, of said circuit court.
    
      Before a judgment was obtained on the bond, an alias and pluries fi. fa. were issued against all the defendants, including M’Donaid. But on their application a superse-deas was granted, and the pluries fi. fa. was, on the 15th of February, 1834-, quashed, because it had been improperly issued, the delivery bond still remaining in full force.
    At the August term, 1834, a judgment by motion was taken against said Thomas Brown, Thomas R. Brown, and E. D. Jones on said forfeited delivery bond; the said Lewis IL Brown, having died in August, 1832. Thomas Brown, the complainant in the present bill, paid the whole of the said judgment, and filed this hill against the defendant, his co-security in the original bond, praying that he be compelled to contribute one half the amount so paid. The bill was dismissed.
    
      J. W. Combs, for dje complainant,
    «fi. Wright, for defendants.
   GReen, J.

delivered the opinion of the court.

It is very clear, that the defendant M’Donald not hav-mg joined in the execution of the delivery bond, could not, after the execution by the other defendants and their securities, have' been rendered liable to E. Webb & Co. for the amount of the judgment, to satisfy which, the levy was made on the property,' for the delivery of which the bond was taken. Young and Whitcomb vs. Read, 3 Yerg. Rep. 297: Laird vs. Camp and others, 6 Yerg. Rep. 246. But it is contended, that although the defendant was released from his liability to the plaintiffs in that action, it does not follow, that he ceased to be liable to contribute to bis co-security, should he pay the debt. We think it does, for several reasons. In the first place by the levy of the execution upon a sufficient amount of the property of the principal to make the sum called for the execution, it was satisfied, and consequently all the liability of the complainant and defendant thereby became extinct. Young and Whitcomb vs. Read, 3 Yerg. Rep. 297: Laird vs. Camp and others, 6 Yerg. Rep. 246. The subsequent liability of the complainant arose upon the execution by him, of the delivery bond; and as the defendant did not execute it, nothing can be plainer than that he was released from all obligation, as well to the plaintiff as to his co-security.

There is, however, 'another view of the subject which is conclusive. Nothing is better settled, than that if the plaintiffs had made a binding contract with the other defendants in die execution, by which to release the levy and give farther day for payment, contrary to the wish and consent of the defendant M’Donald, such act would have released him from any further liability. If, then, his co-defendants, among whom was the complainant, availing themselves of a legal power, without his consent and against his wishes, in effect do tire same thing, does it not follow, that by the same principle he must be released from any obligation to them? The implied agreement of co-securities, that they will contribute equally.of the amount that either of them may he compelled to pay for the principal, is not a stronger obligation than that which they owe to the payee of the note; any thing, therefore, which if done by the latter, would release the security, must have the same effect, if done by the former.

■ In this view of the case, it is unnecessary to consider what is the true construction of the act of 1831, ch. 25. It is admitted by the parties of record, that the delivery bond was a valid one, and taken in pursuance of law. It is also admitted in argument, and is unquestionably true, that however this may be, still the bond is good as a com- ■ mon law obligation. In either case, the contract was such an one, as that the levy was released, and further time was given without the consent of the defendant M’Donald. H,e could not have controlled the execution or prevented this course of proceeding, if he had paid the amount to the plaintiffs in the execution; so that without his consent, a liability is attempted to be forced upon him, from which he would have been- discharged, but for the act of the complainant in executing the bond. He ought-not, therefore, to be liable to contribute.

-Decree affirmed.  