
    Israel W. Pickens vs. John Finney et al.
    Forbearance, or mere passiveness, on the part of the creditor, will not release the surety ; therefore where a judgment creditor omitted to have his judgment upon a forthcoming bond enrolled, whereby junior judgment creditors of the principal in the bond obtained priority of lien against the principal, and absorbed all his property, he will not thereby release the surety on his forthcoming bond ; it might perhaps be otherwise if the surety had applied to the creditor to enrol the judgment, though even that is doubtful.
    In error from the district chancery court at Carrollton; Hon. Henry Dickinson, vice-chancellor.
    Israel W. Pickens alleges in his bill, that John Finney, on the 21st of April, 1841, obtained judgment against Robert Cook, for $450 debt, and $202 damages; an execution, on which was bonded with complainant as surety, and the bond forfeited on the 20th of October, 1845; at which time, Cook had property in his possession, sufficient to have paid this judgment, and all of an older date, and had Finney enrolled his judgment so as to have preserved the lien, the money thereon could have been made out of the property of Cook; but by omitting todo so, Finney gave younger judgments, a list of which is given in the bill, priority of lien, and all of Cook’s property was taken by executions on them, and sold for more than enough to pay Fin-ney’s judgment, and'all older.
    . There are other allegations in the bill, which need not be noticed.
    Finney’s answer did not alter the case, as presented by the" bill on this point; the vice-chancellor granted an injunction on the bill, which contained other grounds of equity, but dissolved it, on the answer, denying their truth.
    Pickens, sued out this writ of error.
    
      J. M. Dyer, for plaintiff in error,
    Cited Acts of 1844, p. 97, § 1; Freem. Ch. Rep. 548; Smedes, Dig. 402, § 33.
    Cothran, for defendant in error,
    Cited Hutch. Code, 891; Newell v. Hamer, 4 How. (Miss.) 684.
   Mr. Justice Clayton

delivered the opinion of the court.

The sole question in this case is, whether the failure of the plaintiff in an execution at law, to have the judgment upon a forfeited forthcoming bond, enrolled according to the statute, discharges the surety in the bond, when such failure lets in the lien of younger judgments, which take all the property of the principal.

In the case of Johnson v. The Planters’ Bank, 4 S. & M. 171, this court held, that “if a creditor, who holds a note against a principal and sureties, fails after the death of the principal to present it to the administrator, within the time prescribed by law, the sureties are not thereby discharged.” Forbearance or mere passiveness on the part of the creditor will not release the surety; but he must do no positive act which would increase the hazard of the surety. The same principle was affirmed in Cohea et al. v. Com. Sinking Fund, 7 S. & M. 441; and again in Caruthers v. Dean, 11 S. & M. 178.

This doctrine fully covers the present case, and takes away all claim of the complainant to relief. If he had applied to the creditor to enrol the judgment, the case might have been different, though even that may be doubtful. But where both parties are equally negligent, the surety has no right to throw the loss upon the .creditor. The very reason of taking security, is the unwillingness of the creditor to trust to the principal debtor alone.

The order dissolving the injunction is affirmed, and the cause remanded.

Decree affirmed.  