
    *Chichester's Adm’r v. Mason.
    February. 1836,
    Richmond.
    (Absent Tucker, F.)
    Sureties — Discharge-—Case at Bar. — C. having a judgment on a forthcoming bond against M’C. principal and M. surety, sues out a fi. fa. thereon, and puts it into the hands of the sheriff, M’C. at the time holding ample unincumbered property to satisfy the execution, though he was much indebted, and C. doubted his stability : while the execution is in the sheriff’s hands, C. without the conseut or knowledge of M. the surety, enters into an agreement with M’C. the principal, to give him indulgence, but without specifying for what time, and to direct the sheriff not to proceed on the execution, in consideration of M’C. ’s agreeing to pay him ten per cent, per annum for the indulgence; C. accordingly directs the sheriff not to proceed with the execution ; about three months after, M’C. the principal dies insolvent, not having paid C. any part of the ten per cent.; and then C. sues execution against M. the surety; Held, by the court of chancery, the surety was discharged in equity by the creditor’s dealings with the principal debtor ; and decree affirmed by the equal division of this court.
    Upon a bill in chancery, exhibited by Mason against Chichester’s administrator, in the county court of Fairfax, the case appearing by the pleadings and proofs in the cause, was thus—
    One Blacklock having obtained judgment and award of execution on a forfeited forthcoming bond, against M’Carty the principal, and Mason the surety, in the bond, transferred the judgment to Chichester, who sued out a fieri facias thereupon, and put the same into the sheriff’s hands. M’Carty, the principal debtor, was much indebted; yet he had, at the time, unin-cumbered property amply sufficient to satisfy this execution, and the debt might have been made out of his property, if the sheriff had been permitted to proceed on the execution. '"But, after the execution had been delivered to the sheriff, Chichester, without the consent or knowledge of Mason the surety, entered into-an arrangement with M’Carty, whereby he agreed to give M’Carty indulgence, and to-direct the sheriff not to levy the execution, in consideration of an agreement by M’Carty to pay him ten per centum per an-num for such indulgence; but the agreement-on Chichester’s part did not bind him to' give M’Carty indulgence for any specified time. When this arrangement was made by Chichester, it appeared, he had no confidence in M’Carty’s stability; for it was. proved, that he knew M’Carty was much involved in debt, and that he would not have purchased the judgment from Black-lock, if Mason or some other person equally sufficient had not been M’Carty’s surety. In pursuance of the arrangement, Chiches-ter directed the sheriff not to levy the execution then in his hands; and no step was. taken to coerce payment, until after M’Carty’s death, which occurred some two- or three months after the return day of the execution. There was no proof, nor was it alleged in the bill, that M’Carty, in his. lifetime, paid Chichester any part of the ten per cent, he had agreed to pay him for the indulgence. He died, for aught that appeared to the contrary, in possession of all the property he held at the time of the arrangement between him and Chichester. But his estate proving insolvent, having been exhausted by the payment of debts due by executions which were in the sheriff’s hands at the time of his death, and of a large debt of superiour dignity; and Chichester being now also dead, and his. administrator being about to coerce payment of this debt from Mason, the surety, Mason exhibited this bill, praying an injunction to stay all proceedings against him, and general relief.
    Such being the state of the case, the county court decreed, that Chichester’s administrator should be perpetually injoined from proceeding at law against Mason, *the surety. Chichester’s administrator appealed to the superiour court of chancery of Fredericksburg, which affirmed the decree; and then he appealed to this court.
    Robinson, for the appellant.
    I. It is well' settled, that the dealings between the creditor and the principal debtor, which will have the effect of releasing the surety, must be some agreement or other act, whereby the creditor precludes himself from proceeding against the principal after the debt is due, for some time, it is immaterial how short; such an agreement or act as would induce a court of equity to prohibit the creditor from proceeding at law; and the true ground on which sureties are relieved in such cases, is, that the creditor has by his act or agreement, without the surety’s assent, impaired the remedies of the surety to save himself from loss. For, if the act or agreement of the creditor be such, that he may, notwithstanding, proceed immediately against the principal, if required in writing by the surety under the statute, 1 Rev. Code, ch. 116, $ 6, p. 462, or that the surety may, upon payment of the money, be 'substituted to the creditor’s right of proceeding immediately against the principal; or may, without impediment or delay from the creditor’s agreement or act, resort to his bill quia timet; then, no injury has been done to the surety by the creditor, and ■there is no possible reason for absolving the surety. Norris v. Crummey, 2 Rand. 323, 334-8; Hunter’s adm’rsv. Jett, 4 Rand. 104. Now, in the present case, the agreement between Chichester and M’Carty the principal debtor, did not bind the creditor to give the debtor indulgence for anjr definite time; and, admitting that the agreement was valid, yet Chichester might, without any violation of its terms, have instantaneously resumed his proceedings to coerce payment from M’Carty. But the agreement was not valid and binding at all on either party: the consideration was usurious: Chi-Chester was *at liberty to waive it, and could not have enforced it: he could derive no possible benefit from it, nor could such a promise occasion any possible loss to M’Carty. M’Eemore v. Powell, 12 Wheat. 354; Philpot v. Briant, 4 Bing. 717, 15 Eng. C. E. Rep. 126. It cannot be pretended, that M’Carty paid Chichester any part of the premium of ten per cent, which he stipulated to pay for the indulgence; for there is no proof that he did, and it is not even alleged in the bill; and the short time that M’Carty lived after the agreement was made, renders it wholly improbable.
    II. Considering the facts of the case in the strongest point of view for Mason, the surety; granting, that but for Chichester’s countermanding his execution, the debt might and would have been made out of M’Carty, the principal; yet the countermand of the execution did not absolve Mason, the surety. For a countermand of an execution by a creditor, at the moment the sheriff was at the house of the principal debtor, and about to levy the process on property of the principal amply sufficient to satisfy the debt, without the consent or privity of the surety, was held by this court not to release the surety, in M’Kenny’s ex’ors v. Waller, 1 Leigh 434. And the reason of that decision is plain; such an act of the creditor nowise precluded him from resuming his proceedings against the principal instantaneously, and nowise impaired any of the remedies to which the surety might resort to save himself from loss. So, neither did the act of the creditor, in the present case, suspend his own remedies against the principal, or impair any remedy open to the surety. M’Kenny’s ex’ors v. Waller, then, is directly in point to our case. It is even a stronger case. There, the sheriff was in the act of laying his hands on the principal’s property, when the creditor interposed, and ordered him to desist. Here, the execution had only been delivered to the sheriff. But a fi. fa. delivered, before it is levied, gives. *uo perfect lien on the debtor’s goods ; though, indeed, when the process is levied, the lien relates back to the delivery of the writ, and overreaches intermediate alienations. But the delivery of the execution, so long as it remains in the sheriff’s hands without being levied, does not change the property of the debtor’s goods; that remains in the debtor, until the actual levy; Tidd’s Prac. 1038, 9; 2 Gwil. Bac. Abr. Execution, D. I. pp. 721, 733. A fi. fa. subsequently delivered, but previously levied, exempts the property from the first execution; Payne v. .Drewe, 4 East 523. And if the return day of the execution passes, without its having been levied, the lien, which was never consummated, is wholly gone. The delivery of the execution, then, gives only an inchoate imperfect lien. The creditor is not bound to perfect the lien for the benefit of the surety, without being required by him to do so, anymore than he is bound to bring a suit for the debt, without being thereto required by the surety. The pursuits of the creditor against the principal debtor do not liberate the surety, who remains always bound until payment; and the creditor may abandon his pursuits against the principal debtor, to sue the surety. 1 Evans’s Potheir on Obligations, p. 2, ch. 6, $ 6, Art. 1, p. 261. The creditor has a right, without consulting the surety, to pursue the principal debtor in any mode that seems to himself most judicious ; to sue out a fi. fa. or a ca. sa. or an elegit; and having sued out an execution of one kind, to countermand it before it is levied, and take out execution of another kind. A creditor, having sued out a ca. sa. which, if it had been levied on the debtor, or if the bail had surrendered him, would have discharged the bail, suspended proceedings on the execution for three weeks, upon a treaty with the debtor for a composition, and, the composition failing, after-wards proceeded against the bail: it was held, *that the bail was not discharged, because the creditor had not put himself in such a situation that he might not at all times have proceeded against the debtor, and had not, by remitting his own legal diligence, barred the bail from surrendering his principal; in other words, had not impaired the remedy of the bail to save himself from loss. Brickwood v. Annis, 5 Taunt. 614; 1 Eng. C. E. Rep. 210. So, if a ca. sa. against principal and surety should be actually levied on the principal, and the principal should be discharged because the creditor will not defray the prison fees, this will not discharge the surety, upon the principle of the case of Nadin v- Battie & al., 5 East 147. Neither does the fact that the debtor was at one time able to pay the debt, but afterwards became insolvent, impair the liability of the surety, unless there be something else in the case; Reynolds v. Ward, 5 Wend. 501. The surety must shew, that time was so given to the principal as to deprive the surety of his remedy to save himself from loss; or that the execution was actually levied on the principal’s person or property, and that discharged; or that a certain and perfect lien on the principal’s property, not an inchoate one, depending for its consummation upon after events or acts, has been voluntarily surrendered by the creditor, so as to render him incapable of ceding his remedies to the surety. 1 Evans’s Pothier, ch. 1, Art. 6, 'i 2, p. 363. . : ■ . i i
    Johnson, for the appellee.
    I. This case : is altogether peculiar. A creditor having sued out a fi. fa. against principal and surety, which, if the sheriff should be permitted to proceed, may undoubtedly be satisfied out of the principal’s property, agrees to give indulgence to the principal, without the surety’s consent or knowledge, in consideration of a promise of the principal to pay him ten per centum per annum for indulgence ; for the benefit of which agreement, he countermands his execution, ; l ■ ■ > : • p ■ *and while the indulgence so given, for such a consideration, is continuing, the principal dies insolvent. The promise of the principal debtor to pay the creditor such a premium for the indulgence, was a sufficient consideration to support the agreement on the creditor’s part. It did not lie in his mouth to say, that the agreement was usurious. ' He agreed to give the indulgence for the premium; and he was not at liberty to speculate for the chance of an usurious gain from the principal, at the risque of the innocent surety, utterly ignorant what he was doing, and secure in the knowledge of the principal’s present ability to pay the debt. If any part of the premium for indulgence was paid to the creditor, he was surely bound to give some indulgence, and indulgence for a definite time ascertained by the amount of premium paid: if no part of the premium was actually paid, yet the debtor might pay or tender the amount of ten per cent, for one year, and thus have entitled himself to one year’s indulgence. The usurious premium exacted for forbearance nowise affected the original debt. The creditor, knowing this, was speculating in the hope of usurious gain from a debtor, whom he knew to be in embarrassed circumstances, and therefore a fit subject for such extortion. The very extortion deprives him of all claim to favour. But to extort the premium from a failing debtor for the indulgence; to hold the surety bound for the debt and legal interest, while he was endeavouring to get the usurious gain from the principal; to take the chance of this gain from the principal, while he imposed on the surety the risque of the principal’s insolvency during the continuance of the indulgence; this, if it was willfully designed by the creditor, was a gross iniquity, and a fraud upon the surety, which alone entitles the surety to relief; and if it svas not designed, then his intention was to give indulgence to the principal at his own : risque, in the expectation of the usurious < ' gain, and to absolve the surety. : 1 : : : :
    *The creditor, after such an agree- ; ment with the principal, could not < have proceeded against him immediately; - he could not have proceeded against him, i at the least, until after the return day of the execution then in the sheriff’s hands had elapsed; for the sense of the agreement was, that the creditor should give the prin- . cipal debtor indulgence, and substantially : countermand that execution, not that he ■ should countermand it in one breath, and . retract the countermand in another, or take i out a new execution the next hour after-i wards.
    But, II. putting the agreement out of the case, the countermand of the execu- : tion was of itself, under the circumstances, ; a complete absolution of the surety. The l creditor had a fi. fa. in the sheriff’s hands, ■ which bound the debtor’s goods from the ■ time of the delivery; the goods of the > debtor so bound by the execution were suffi- : cient to satisfy the debt; if the sheriff had • been permitted to proceed, he would have p made the debt out of the principal’s prop- ■ erty, for other creditors who did proceed on their executions made their money out of his effects; the creditor knew that the principal debtor was solvent at the time, 1 but in jeopardy of insolvency: and this : creditor, under these circumstances, in con- : sideration of an usurious premium, paid or promised to him (it is immaterial which), : gave up the lien of his execution on the : debtor’s goods. Grant that lien was imperfect and inchoate only, yet it was a lien that might have been instantaneously consummated at his pleasure, and he would not consummate it; he forbore to consummate it, for what was, in his opinion, a sufficient consideration, beneficial to himself and to him only. If he had proceeded with his execution, the fruits of it would have paid the debt, and thus the surety would have been exonerated ; he willfully forbore to proceed, without consulting the surety, the person of all others the most deeply interested: and the question is, whether the surety ought to be relieved in equity? *When a creditor parts with any security he has in his : < : ; < - i hands, whereby the debt could have been recovered from the principal, the surety is discharged. M’Mahon v. Fawcett, 2 Eand. 514, 530; Loop v. Summers, 3 Rand. 511. For the surety is entitled to the benefit of that security; Tompkins v. Mitchell, 2 Rand. 428; Enders v. Bruñe, 4 Rand. 438. There can be no just distinction between a perfect security or lien on the debtor’s property, and one which the creditor may at his pleasure instantaneously make perfect. The surety is as much interested in the one, and as much injured by the release of it, as the other. In Mayhew v. Crickett, 2 Swans. 193, lord Eldon said, he always understood, that if a creditor takes out an execution against the principal debtor, and waives it, he discharges the surety, on an obvious principle which prevails both in courts of law and in courts of equity. It is true, that was a case in which the execution had been levied; but it is obvious, the court considered the case of an execution taken out, which maj' be instantly levied, as standing on the same principle. As to the case of M’Kenny’s ex’ors v. Waller, it is apparent, that this point was not made in the argument; and if it had been, that case is distinguishable from this. There, the creditor received and bargained for no consideration for the .indulgence he gave to the principal debtor; here, the creditor did stipulate for a consideration from the principal debtor for the indulgence: there, the creditor made no agreement whatever with the principal debtor, but simply directed the sheriff not to levy the execution; here, the creditor did make an agreement with the principal, in pursuance of which he directed the sheriff not to proceed on the execution: there, the creditor at the time he gave the indulgence to the principal, had no reason to believe it would operate to the injury of the surety; here, the creditor knew the principal debtor was in embarrassed circumstances, and that the indulgence given to him x'pul the surety in jeopardy: there, above all, the creditor acted with perfect good faith ; here, it is impossible to acquit the creditor of a fraud upon the surety, unless the court shall attribute to him the design of releasing him.
    
      
      He decided the cause in the court of chancery; so that three judges of this court approved the decree.
    
    
      
      Sureties — Discharge.—Upon the question as to when a surety is discharged by an agreement between the creditor and the principal debtor, the principal case is cited in footnote to Hill v. Bull, Gilm. 149 ; Ashby v. Smith, 9 Leigh 174; Armistead v. Ward, 2 Pat. & H. 511 ; Croughton v. Duval, 3 Call 69 ; ward v. Vass, 7 Leigh 146.
    
    
      
      London edition of 1806.
    
   CARR, J.

The questions arising on this appeal are, 1. Whether there was such an agreement between Chichester, the creditor, and M’Carty, the principal debtor, as released Mason, the surety in the forthcoming bond? 2. Whether the creditor’s directions to the sheriff, not to levy the execution, operated, under the circumstances of the case, to release the surety?

The cases are very numerous, both at law and in equity, which discuss and settle the grounds and principles on which it has been decided, that a creditor by dealings with his principal debtor may release a surety. They are laid down at large and with great clearness by judge Green in Norris v. Crummey, and again by judge' Cabell in Hunter v. Jett. The latter says, “I entirely concur with judge Green, as to the law in regard to the discharge of sureties, as laid down by him in Norris v. Crummey — that if a creditor, by agreement or any other act, precludes himself at law from proceeding against the principal after the debt is due, even for a moment, or if the agreement be such as would induce a court of equity to prohibit the creditor from proceeding at law, the surety is discharged ; and I also entirely concur with him, that the true ground or principle on which a surety is relieved in such cases is, that the creditor, by his act or agreement, has injured the surety by impairing his rights and remedies.” The injury here spoken of is some obstruction to the surety’s right to pay up the money, and thereby acquire the power of immediately pursuing the debtor; or to his remedy of filing his bill quia timet. If the creditor has tied up his hands, so that he could not himself immediately pursue *the debtor; there, the surety could not do so, either on paying up the debt or filing his bill, for he can only by substituted to such rights as the creditor has. Net us see whether the case before us falls within this rule.

Suppose the alleged contract between Chichester and M’Carty, whereby the former agreed to give indulgence to the latter, fully proved (though the proof of the agreement seems to me somewhat vague and inconclusive) ; the question, and the only question which concerns the surety, is, did that contract in the slightest degree impair his rights or impede his remedies? There was an execution in the sheriff’s hands, at the time, both against the principal and surety. Suppose the surety had paid the debt, and (as of right he could) had taken control of the execution, and had it levied on the property of the principal; does any one imagine that M’Cart3r, on the strength of this vague arrangement, not binding the hands of Chichester for a definite moment of time, and withal usurious, could have stopped the proceeding an instant? Or if, instead of paying the money and taking the creditor’s place, the surety had chosen to file his bill quia timet, calling the parties into equity, and praying a decree against the principal debtor for payment of the debt to the creditor; could the debtor have stayed for a moment the progress of the court, by a defence rested on such an agreement as this? Surely, there needs no aulhoritjr to shew that he could not. But there is authority. When the cases speak of an agreement which ties up the hands of the creditor, they mean a valid agreement upon sufficient consideration. Thus, in M’Hemore v. Powell, judge Story, delivering the opinion of the court, says — “We admit the doctrine, that although the indorser has received due notice of the dishonour of the bill, yet if the holder afterwards enters into any new agreement with the drawer for delay, in any manner changing the nature of the original contract, or affecting the rights of the indorser, or to the prejudice of the latter, *it will discharge him. But in order to produce such a result, the agreement must be one binding in law upon the parties, and have a sufficient consideration to support it. An agreement without consideration is utterly void, and does not suspend for a moment the rights of any of the parties.” Again, in Walwyn v. St. Quintin, 1 Bos. & Pull. 652, and in Arundel Bank v. Goble, Chitt. on Bills 447, note (k) the same doctrine is laid down. Again, in Philpot v. Brian!, cited at the bar, it is decided that if the executor of the acceptor of a bill of exchange orally promise to pay the holder out of his own estate, provided he forbear to sue, and the holder forbear to sue in consequence; the promise being void (under the statute of frauds) the drawer of the bill is not discharged by the holder’s having promised to give time, and having delayed to sue under such circumstances. If the agreements here spoken of do not discharge the surety, simply because they have no valid consideration, how much stronger is the case, where the consideration is one which a statute declares illegal, and that all bonds, contracts, covenants, conveyances or assurances, made on such consideration, are utterly void? I conclude then, that there was no agreement here discharging the surety.

Then, did the directions of the creditor to the sheriff to hold up the execution, discharge the surety? Here, again, there is a want of certainty in the allegations and proof, since the execution is not in the record, so that the court may see the date of it, when it came to the sheriff’s hands, when it was returnable, and what return he made on it. But to the question — It is contended, that this execution in the hands of the sheriff constituted a legal lien on the personal estate of the debtors, and that by the direction of the plaintiff to hold it up, he destroyed this lien as to the principal debtor, and thereby released the surety. The proposition is ^founded on the doctrine of subrogation, by which a surety paying the debt is entitled to stand in ■‘■he place of the creditor, and to have all his sureties transferred to him; and if the creditor has discharged any of these, unless in doing so he has acted with good faith and just intention, he shall be precluded from so much of his demand against the surety, as this latter might have obtained if the transfer could have been made. This is the acknowledged doctrine: but I think the securities here spoken of are very different from the lien of a fi. fa. delivered. They are (in all the cases I have seen) existing, complete, perfected liens: the lien of a fi. fa. delivered is not so. The delivery of the execution does not alter the property of the goods, for that is still in the defendant; Gilb. on Ex’ors, 13, 14; Lowthal v. Tonkins, 2 Eq. Ca. Abr. 381. The property is changed by levying the execution, and not till then ; Clerk v. Withers, 1 Salk. 322. If A. deliver an execution to the sheriff to-day, and B. a week hence, and the execution of B. be first levied, it will take precedence of A.’s; Sanford v. Roose, 12 Johns. Rep. 162. If an execution be returned without being levied, and a new one be issued, the lien will not relate back to the date of the former. These things shew, that the lien of the fi. fa. delivered is uncertain and inchoate merely, depending for its consummation on a further act. It is therefore unlike the securities spoken of in the cases. But further, it seems to me, that a doctrine like that contended for would materially interfere with the free choice, which it is admitted the plaintiff has, of pursuing his debtor in any of the forms given by the law, and changing such form just as his interest and his judgment shall dictate. If on getting judgment the creditor elect to take an elegit, it binds from the date of the judgment; but it will not therefore be said, that he is not at liberty to resort to a different execution, and thereby waive this lien. Suppose a ca. sa. levied, and the debtor committed *to jail; a lien is thus raised on his estate, real and personal; but if the jailor turn him out for failure to pay the prison fees, the lien is gone: yet it will hardly be said, that any surety would by this proceeding be released. I need not, however, rely on this kind of reasoning, for we have a case decided by this court directly in point, and stronger, I think, than the case at bar; I mean the case of M’Kenny’s ex’ors v. Waller. There, the executions were put into the sheriff’s hands, and he went to the house of the principal debtor three days before the return day to levy them; the debtor prevailed on the creditors to indulge him, and they, at his instance, without the knowledge of the surety, gave written instructions to the sheriff “not to levy the executions till they should see him.” The sheriff returned, ‘ ‘not executed by order of the plaintiffs;” the executions were renewed ; but, in the mean time, the debtor had removed his property beyond their reach, and the executions were levied on the property of the surety. I say that case is stronger than the one before us; for there, we saw exactly what was done, — that the executions were almost at the return day when the sheriff went to levy, and that, the suspension carried them beyond it; we saw the return too; and we saw that by the interference of the creditors, the property, or great part of it, was eloigned. But here, we do not see the proceedings under the execution, or whether out of date at M’Carty’s death, or what was the return ; and we do see, that there was no removal or loss of property by the delay. Now, can it be doubted, that if the surety had used due diligence he might have made this-money? If he had paid the debt, and acted promptly, I have no doubt he might. The case of M’Kenny’s ex’ors v. Waller, then, is stronger than that before us; and it is most clear that that case was not passed over without examination; for cases turning upon the release of sureties were quoted by both counsel. And the *court said — “that according to the principles of the cases decided by this court on this subject, there was no' ground whatever on which the decree could be supported.” It was, indeed, objected to the authority of that case, that the point with respect to the lien of the fi. fa. was not raised or considered: but this is. an argument which may cut the other way t if the counsel who argued that case, and the court who examined it, either wholly overlooked the objection, or did not think it of sufficient weight for discussion, and if in all the numerous cases which have occurred, this objection has never been started, ought it not to excite some distrust of the soundness of the objection itself? The case of Mayhew v. Crickett (from the short sentence quoted at the bar) seemed to say, that if a plaintiff took out an execution, and did not proceed on it, he discharged the sureties. I felt sure, however, that lord Eldon could not mean that; and I find, on looking at the case, that though he is made to express himself loosely in one or two places, yet he makes it clear at least, that he means what I had before understood to be the law. The case before him was one of an execution levied, and afterwards the property given back to the debtor, without the consent of the surety; and when he seems to speak somewhat at large, we must recollect that he has reference to the ease before him. But, at length, he speaks thus — “I think it clear, that though the creditor might have remained passive, if he chose, yet if he takes the goods of the debtor in execution, and after-wards withdraws the execution, he discharges the surety, both at law and in equity..” Here, ■ we see exactly what he means by “taking out the execution and waiving it,” and by saying that the plaintiff “is a trustee of his execution for all parties interested.” He considers him as lying1 passive, unless he takes the goods under his execution ; but once taking them, he is a trustee for all concerned, and cannot let them go (except by consent) without discharging *the sureties. I conclude, that, both upon reason and authority, there is nothing in the second point.

I think the decree should be reversed, the injunction dissolved, and the bill dismissed.

BROCKENBROUGH, J., concurred.

CABELL, J.

I am of opinion, that the ■obligation of the surety was extinguished by the dealing of the creditor with the principal debtor. I do not place the discharge of the surety on the ground, that, ■by the arrangement between Chichester and M’Carty, time was so given to the ■principal debtor as to tie up the hands of the creditor, and thereby to impair the remedies of the surety. I do not think that that ground could be taken in this case. But that is not the only ground on which the obligation of a surety has been held to be extinguished. There are other and higher grounds for such discharge. I put the discharge, in this case, on the ground that the creditor had, by putting his execution into the hands of the sheriff, acquired a lien on all the unincumbered goods of the principal debtor, for the payment of his execution (it is proved they were abundantly sufficient for the purpose) ; and that, by the arrangement made, he voluntarily and fraudulently parted with that lien, without the knowledge or consent of the surety.

No rule is better established than that which declares that if a creditor, without the consent of the surety, parts with a security which he would be entitled to apply to the payment of his debt, the surety is thereby exonerated, at least pro tanto. And this rule is applicable not only to securities acquired by the contract of the parties, but also to those acquired by the operation of the law. The case of Mayhew v. Crickett is an exemplification of this rule. In that case, lord Eldon said — -“The second ground was, that the defendants (the creditors) had, by releasing their execution, ^relinquished their remedy (against the surety) at least pro tanto. I always understood, that if a creditor takes out execution against the principal debtor, and waives it, he discharges the surety, on an obvious principle which prevails both in courts of law and in courts ■of equity” — “There can be no doubt, that it is a question fit to be tried at law, whether, if a party takes out execution on a bill of exchange, and afterwards waives that execution, he has not discharged those who were sureties for the due payment of the bill. The principle is, that he is a trustee of his execution for all parties interested in the bill.” There is no difference in this respect, between sureties to a bill, and sureties for any other debt. And, in fact, the case then before lord Eldon, and to which he applied the principle, was not the case of a surety to a bill of exchange, but a surety (not an indorser) to a common promissory note. It is true that in that case the execution had not only been taken out, but had been levied ; and lord Eldon, when he came especially to apply the principle to it, adds — “that though the creditor might have remained passive, if he chose, yet if he takes the goods of the debtor in execution, and afterwards withdraws the execution, he discharges the surety both at law and in equity.” And I admit, that the case thus decided by lord Eldon, may, perhaps, be authority in those cases only where the goods have been taken in execution. But the principle on which it was decided, is, from its nature, susceptible of application to other cases where the execution may not have been levied. Although the delivery of an execution to the sheriff does not give so perfect a hold on the property of a debtor as the levy of the execution, yet it is undeniable that the delivery to the sheriff does give a lien on all the goods of the debtor for the paj'ment of the debt, and that this lien follows the property into the hands of a subsequent purchaser even for valuable consideration. If the principle, that a creditor *is “a trustee of his execution, for all who are interested” is to prevent his releasing the hold acquired by the levy of the execution, why shall not the same principle prevent his parting from that hold which is acquired by the delivery of the execution? It is a lien for the benefit of the surety, as well as the creditor; for, if enforced, it may insure the payment of his debt. When a creditor voluntarily releases such a lien, not for the honest purpose of resorting to other remedies which he may deem more efficient, nor even from motives of kindness or humanity towards the debtor, but for the corrupt purpose of additional gain to himself, at the risk of the surety, he becomes a faithless trustee of the execution, by a gross fraud committed on the innocent surety; especially when, as in this case, the creditor knew the principal to be unworthy of trust, and consequently that if trusted, it would be at the expense of the surety. I cannot think such a fraud will be tolerated in a court of equity and good conscience. I think it a case which demands the application of the principle announced by lord Eldon, much more strongly than the case of Mayhew v. Crickett.

It is said, however, that the case of M’Kenny’s ex’ors v. Waller is an authority in point against the proposition I have stated. I cannot think so. There are ingredients in this case which are not to be found in that. There was no proof in that case that the principal was embarrassed, or in failing circumstances, nor that he was thought to be so by the creditor; above all, there was no proof of corrupt motives on the part of the creditor, inducing the release of the execution. It was an indulgence from motives of mere kindness and humanity towards the debtor. That case, therefore, may have justified a decision which would be very improper in this. Besides, I am very confident that the principle on which I rest this case was not brought to the view *of the court in that. The counsel for the creditor cited only Norris v. Crummey and Hunter’s adm’rs v. Jett; and the counsel for the surety cited no other case than Peel v. Tatlock, 1 Bos. & Pull. 422. Neither of which cases has the most distant allusion to the principle now contended for. The resolution of the court delivered by judge Coalter, is embraced in three lines, declaring that “according to the principles of the cases decided by this court, on this subject, there was no ground whatever on which the decree could be supported.” I have carefully examined every case that has ever been decided by this court, having, as I supposed, any reference'to the exoneration of sureties, from Croughton v. Duval, to M’Kenny’s ex’ors v. Waller; and I think I shall not be found to be mistaken, when I say, that there will not be found in any one of them, any allusion to the question, whether the release or withdrawing of an execution put into the hands of the sheriff, is or is not a discharge of the surety. Croughton v. Duval, 3 Call 69; Ward v. Johnston, 6 Munf. 6; Hill v. Bull, Gilm. 149; Bennett v. Maule, Gilm. 328; Norris v. Crummey, 2 Rand. 328, and Hunter’s adm’r v. Jett, 3 Rand. 104. In the first of these cases, the question was as to the effect of the neglect or refusal of the creditor to sue the principal; and in all the others the question was, whether the surety was discharged by the creditor having given time, and thereby tied up his hands, so as to impair the remedies of the surety. When, therefore, the court in M’Kenny’s ex’ors v. Waller, refer to the principles heretofore decided by this court, as decisive of that case, the inevitable inference (as I conceive) is, that the attention of the court was directed solely to the question, whether the creditor had so indulged the debtor, as to tie up his hands, and thereby injure or impair the remedies of the surety. If this inference be correct, that case will be stript of much of its force *as authority even in cases whether the circumstances may be precisely the same.

It may be said, that if the principle I have stated be correct, cases requiring its application must have frequently occurred, and that it would have been announced in former decisions; and that the absence of such decisions is proof of the non-existence of the principle. I admit that such an objection is not .without its weight. But I do not think it conclusive. It might have been urged, with equal propriety', against the decision of lord Eldon in May-hew v. Crickett; for that case, although it was not decided till 1818, is the first case that I have been able to find, in any of the english decisions, in which the principle laid down by lord Eldon was applied to the release or withdrawing of an execution levied: and my researches have been anxious and laborious, and have extended to every case that I thought likely to have any bearing on the subject. It is certain, that it is the only case referred to in the valuable elementary treatises of Theobald on the law of principal and surety, and Hovenden on frauds; and both, of these writers lay down the principle in ' general terms, embracing executions delivered to the sheriff, as well as executions levied.

There is another case decided by this court, which was not referred to in the argument, but which I have carefully examined. I allude to the case of Alcock v. Hill, 4 Leigh 623, in which the execution was withdrawn by the creditor, after having been put into the hands of the sheriff. But that case is liable to all the remarks which I have made on M’Kenny’s ex’ors v. Waller, as contradistinguished from this. Besides, in that case the creditor had, through the sheriff, stipulated with the surety', when he became such, that he would give indulgence, and in compliance with that stipulation, he withdrew the execution which had been issued by the clerk, without his knowledge. The sole question ^considered in that case, was, as in M’Kenny’s ex’ors v. Waller, whether by the indulgence granted, the creditor had tied up his hands, so as to impair the remedies of the surety.

I think, therefore, that this is the first case, in which the attention of the court has been called to the question, how far the release or withdrawing of an execution by the creditor, shall operate the discharge of the surety. In this view of it, it is a new case. But, in the infinite diversity of human transactions, new cases must often occur; and when they do occur, they can be decided only by' those general principles of law and equity, which are applicable to them. And when a principle is correct in itself, and is applicable to a case, the novelty of the case presents no objection to the application of the principle as the rule of decision.

I am therefore of opinion, that the decree be affirmed. I deem it proper, however, to state distinctly, that I do not mean any thing which I have said, to be considered as impairing the discretion which the law vests in a creditor, in the pursuit of his legal remedies. I readily admit his right to withdraw an execution, provided he withdraws it for the purpose of resorting to another execution which he thinks will be more effectual. I can readily conceive a case in which he would be justifiable in withdrawing, against the wish of the surety, even an execution levied. Suppose a fi. fa. to be levied on property greatly inadequate to the payment of the debt, and the creditor has reason to believe that the debtor is about to remove himself and all his other property, before the day of sale. Surely, in such a case, he might withdraw his execution, return it, and take out a ca. sa. His own interest would require it; and in pursuing his own interest, under such circumstances, he would violate no duty which, as the trustee of his execution, he owes to others who are interested in the payment of the debt.

-'BROOKE, J.

' I entirely concur with judge Cabell, in the opinion he has delivered; and shall add but a very' few remarks. If we are to be governed by the principle of the statute of 1794 on this subject, 1 Rev. Code, ch. 116, § 6, p. 461, any extraordinary indulgence by the creditor to the debtor, after judgment and execution, should discharge the surety. By that statute, when notice in writing is given by the surety to the creditor, he is required to bring suit in a reasonable time* and to use due diligence to make the debt by execution. And though the creditor obtains judgment and execution without such notice, I am not sure, that he ought not to use the like diligence to make the debt, which is prescribed by the statute when he has notice to bring suit. Having brought suit and obtained judgment and execution, the surety has a right to expect that he will go on to make the debt, without his giving him notice to do so.

The decision in the case of M’Kenny’s ex’or v. Waller, does not impugn this doctrine. The court, in attending to the arguments of counsel in that case, may have overlooked the actual case before it. It is evident, that that decision turned on the question, whether the creditor had so tied his hands, that he could not proceed on the execution; and finding no pretence for that, in the case, the court refused to discharge the surety. But if I am mistaken in this, the indulgence there given, was given in good faith, and not for any sinister object, as in the case before us. The debtor, there, did not appear to have been embarrassed in his circumstances; or if he was so, it did not appear to have been known to the creditor: neither was there ground for any suspicion that he would remove his property out of the reach of the execution, when the indulgence was given. Here, on the contrary, it is very clear, that the creditor had no confidence in the solvency of the principal debtor. The exaction of an agreement from the debtor, "to pay ten per cent, for indulgence, evinced the creditor’s knowledge, that he was embarrassed in his circumstances ; and the very willingness of the debtor to pay such a premium, ought to have forbidden any indulgence. If the creditor had, with good faith, respected the interests of the surety, the principle of the case of Mayhew v. Cricket! might not be applicable to this case; as I think it was not applicable to M’Kenny’s ex’or v. Waller, where it was not to be inferred from the facts, that there was any breach of trust by the creditors, who were executors ; and considering them as trustees for the sureties, in the control of the execution, they were also trustees for the estate of their testator, not acting for themselves, and might well be presumed to have thought they were acting for the interest of all parties. As regarded the estate of their testator, they were bound to do so; and when they gave the indulgence, there was not the slightest proof of any other motive. Even in a case coming expressly under the statute of 1794, it must be admitted, that the creditor must have some discretion. It is the interest of the surety that he should. He may withdraw the execution, if in good faith he is in pursuit of the debt by other means. Cases might be put, in which he could not rely entirely on the solvency of the surety, and he may find it for the interest of all parties to give indulgence. In the case before us, there was no such pretence. As to the argument that the surety may at all times, if he thinks himself in danger, take an assignment of the debt on paying the more)'; that has never been relied on as his only remedy, or indeed as any indemnity; if so, the bill quia timet was in many cases useless, and so was the notice under the act of 1794, which seems to have been substituted for the bill quia timet. It is true the surety may pursue that course; but it will rarely happen, that he can do so without considerable sacrifice. The creditor cannot indulge in speculating *on the interest of the surety on any such ground. I am of opinion that the decree be affirmed.

The judges being equally divided in opinion, decree affirmed. 
      
       American edition, Springfield, 1836.
     