
    Miller vs. Porter.
    An order to the sheriff, made by an execution creditor at the instance of a surely, to suspend proceedings on Ji. fa. and a return of th eji.fa. endorsed ‘‘stayed by order of plaintiff,” will not discharge the surety.
    Porter recovered a judgment in the Circuit Court of Maury county, on the 6th day of January, 1841, against Smith and Miller. Smith was the principal and Miller a surety. An execution issued on the 13th day of February, 1841. Smith applied to Porter for indulgence, and having paid a portion of the judgment, and having agreed to pay ten per cent, on the balance, the execution was returned to the clerk’s office by the sheriff, by order of the plaintiff, endorsed “stayed by consent of plaintiff.” No other execution was issued till the 7th day of February, .1842, at which time the money could not be collected from Smith.
    This bill was filed in the Chancery Court at Columbia, by Miller,' alledging the facts, and praying that he might be discharged, by reason of the conduct of the principal and. the debtor without his concurrence therein.
    
      The bill was tried by Chancellor Cahal, on bill, answer, replication and proof, at the March term, 1844'.
    He dismissed the bill, and complainant appealed.
    
      Wright, for complainant.
    If we take it that Miller was surety in the face of the note, then it must be conceded, that a contract legal and for value, between Porter the creditor and Smith the principal debtor, by which indulgence was obtained, would not discharge Miller the surety. Peay vs. Poston, 10 Yer. Rep. 111. Mg will1 not discharge the surety, nor will a contract - want of consideration, or for a consideration illeo perhaps a usurious agreement will not; because imLA^íeSí'HOOL cases the hands of the surety are not tied up. Theilcontract^s not valid and the creditor not bound by it. Neitt; surety who is entitled to be subrogated to all the righB; creditor. All these cases go upon the reason, that the surety is not prejudiced.
    JBut still there are cases where the delay or negligence of the creditor will discharge the surety. One’ of them is, where the surety himself becomes active and requests the creditor to sue, who fails to do it, by which the debt is lost. Thompson vs. Watson, 10 Yer. Rep. 367. In such a case the surety is injured and the conscience of the creditor affected. And it is said such a case goes beyond the principle of mere- delay and stands upon other grounds. And in Cepel vs. Butler, 2 Sim. & Stuart’s Rep. 457, (1 Cond. Eng. Ch. Rep. 543,) it is held, if by the neglect of the creditor, the benefit of some of the sureties for the debt is lost, the surety is pro tanto discharged. A mere failure to register a mortgage- will have the effect. The creditor is a trustee for the surety and cannot by his negligence or positive acts, be allowed to destroy or release liens, &c.
    The same principles are to be found in Hays vs. Word, 4 John. Ch. Rep. 128. In this case Porter had issued his execution and placed it in the hands of the sheriff. Smith the principal debtor was then good and the money could have been made. 'The issuance of the execution was a lien upon all of Smith’s estate and gave this debt priority over all others. Miller was interested in this lien and bad a right to have it perfected for his own indemnity. Good faith in Porter required that nothing should be done to disturb it. But what does he do? He makes a new contract, receives $180 00 in cash and is to receive 10 or 12 per cent, for indulgence, instructs the sheriff not to make the money and the execution is returned to the following court and all its liens lost and no new writ issued for many terms. In consequence of this delay the debt is lost. But for the improper interference by Porter, Smith would have paid the debt and saved Miller. This case certainly ought to meet with relief.
    In Sneed vs. White, 3 J. J. Marsh, 526, it is held, “a stay of execution by a creditor after its levy on the property of the principal debtor will exonerate the surety if the lien of the levy be extinguished.” So in Jones vs. Bulloclc, 3 Bibb, 467. And in Givens vs. Briscoe, 3 J. J. Marsh, 534, “if one of several equitable owners of an execution indulge the principal to the prejudice of the surety, it might be a ground to exonerate the surety to the extent of his interest in the execution.” Vide also Rathbone vs. Warren, 10 Johns. Rep. 5S7; Peck’s Rep. 36, 37 and 38.
    That the issuance of an execution creates a lien to which the surety has a right .of substitution is settled. Wade et al. vs. Green et al. 3 Hump. Rep. 557, 558.
    
      Baxter, for defendant.
    Mere passive delay in collecting the debtfrom the principal never discharges the surety. Deberry vs. Adams, 9 Yerger, 52; Chitty on Bills, 442.
    When giving time to the principal is relied on, some specific definite time must be agreed on. Chitty on Bills, 445-6; 1 Boss & Pul. 652. The proof in this case shows no definite time. It only shows that a proposition was made by Smith to pay Porter, ten per cent, so long as Porter would indulge him, and the utmost that Porter agreed to was not to push. Porter never agreed to hold up the execution any definite time.
    Agreements for time must be founded on a valuable and sufficient legal consideration. If there was any consideration in this case, it was usurious and void, therefore insufficient. Chitty on Bills, 447; PMlpot vs. Bryant, 4 Bing. Rep. 717; 8 Term Rep. 168; 5 East, 234; 4 Barber’s Eq. Dig. 653.
    Under the statute laws of this. State, after judgment has been obtained against principal and surety on a note or bill single, and the party who-obtains the judgment agrees with the principal to stay execution for six months, it is held,. that such agreement does not discharge the surety. Peay vs. Poston, 10 Yer. 111. .
   Reese, J.

delivered the opinion of the court.

The question raised by the facts in this case is, whether after a judgment has been rendered against principal and surety, and an execution has been issued, the surety is discharged in .equity, if the plaintiff in the judgment and execution direct the officer, in whose hands the process is, to suspend proceedings upon it, and the same be returned as having been stayed by the order of the plaintiff, and this proceeding take place not at the instance of the surety, but of the principal.

The affirmative of this general proposition is not, indeed, insisted on by the complainant’s counsel; but we apprehend its maintenance would be necessary to entitle the complainant to the relief prayed for in the bill. For there is no agreement proved for definite delay; so that the principle cf equitable relief in favor of the- surety, when the principal debtor and the creditor have made such agreement, does not arise in this case, even if such principle applied to.the relation of principal and surety after the rendition of judgment, which may well be doubted; because the aim and scope of the principle itself, namely, the protection and indemnity of the surety, can scarcely exist, when the law, as in our State, gives to the surety, after judgment, such ample and summary remedies for his indemnity against his principal. If the plaintiff issues no process, or causes delay in its execution, or even if hé do not this, the surety may on motion get judgment against his principal, even without paying the money on the judgment in some cases, and in all cases by doing so. But be that as it may, there was no agreement for definite delay, nor any valid and binding agreement whatever; both of which we have invariably held to be necessary to give to the surety an equitable right to be discharged.

The argument, that the surety is entitled to the lien on the property of the principal debtor, created by the issuance of the execution, would, in its results, assert the truth of the general proposition with which we started and maintain that in all cases where an execution is stayed, except at the instance of the surety, such surety is discharged in equity. For the lien claimed, would exist, if at all, in any case.

But if the surety had paid the money on the execution itself, he would be entitled to no such substitution. Because, when a party to a judgment pays it, the judgment ceases to exist, and there is nothing to be substituted to.

This is not contrary to any thing determined in the case of McNairy vs. Eastland, as was maintained by this court in a case determined at the last term of this court, and not yet, perhaps, reported, in which we endeavored to lay down, with some distinctness, several propositions on this subject of lien and substitution, and to define and limit the cases in which they do or do not exist.

Upon the whole, we affirm the Chancellor’s decree.  