
    Leake v. Ferguson.
    January Term, 1846,
    Richmond.
    (Absent Stanard, J.)
    I. Judgments — Legal Lien — Purchasers Take Legal Title Subject Thereto. — The lien of a judgment is a legal lien, and a purchaser of the legal title from the debtor, takes it subject to the lien, though he had no notice of it.
    2. Joint Judgment — Service of Ca. Sa. on One — Effect. —On a joint judgment against several, the service of a ca. sa. upon one, does not extinguish the lien of the judgment upon the land of the other.
    3. Same — Same—Forthcoming Bond Forfeited — Effect. —On a joint judgment against several, the service of a ca. sa. on one, and the execution and forfeiture of a forth coming bond by him, does not extin guish the lien of the judgment upon the land of the others.
    4. Forthcoming Bonds — Forfeiture — Subrogation of Sureties — Case at Bar. — In such a case, the party upon whom the ca. sa. was served, and who executed the forthcoming bond, having been a surety of the principal debtor in the judgment, his surety in the forthcoming bond having paid the debt, is entitled to be substituted to the creditor’s remedies against the land of the principal debtor: and this, though the land was sold by the principal debtor, and had come into the hands of a bona fide purchaser for value without notice, before the service of the ca. sa.
    
    *5» Judgments in Favor of Commonwealth.— Prior to the act of 1855, Sup. Rev. Code, ch. 282, § 1, p. 339, a judgment in favour of the Commonwealth against its general debtors, only bound one half the land of the debtor.
    6. Chancery Practice — Enforcement of Judgment Lien —Account of Rents. — A party coming into equity to enforce the lien of a judgment is not entitled to an account for rents accrued before the decree.
    
      At the June term of the General Court for 1817, the Commonwealth recovered a judgment against Jacob B. Fowler, William Miller, and three others, for the sum of 14,840 dollars, the penalty of a bond executed by them to Wilson Cary Nicholas, governor of the Commonwealth, to be discharged by the payment of 7420 dollars. On this judgment an execution of fieri facias was.issued in July 1817, which was never returned; and in November 1818, a ca. sa. was issued, upon which Miller was taken in execution, and delivered to the sheriff fifteen slaves, in discharge of his body from custody; and then with James B. Ferguson as his surety, executed a bond to the officer, for the forthcoming and delivery of the slaves on the day of sale. This bond was forfeited; and in July 1819, a judgment was obtained thereon against Miller and Ferguson.
    Miller and Ferguson proceeded to make payment upon the judgment against them, until 1829, when an execution was issued for the balance remaining unpaid, against their lands and goods, and was levied upon the lands of Ferguson, which were sold, and ihe money made.
    The judgment of the Commonwealth having been satisfied by the sale of Ferguson’s land, he, in 1833, filed his bill in the Circuit Superior Court of Law and Chancery for Goochland- county, against Jacob B. Fowler and Josiah Leake, in which, after stating the above facts, he charged that Fowler was the principal in the bond on which the original judgment in favour of the Commonwealth was obtained, and that Miller was his surety; that at the time that judgment was rendered Fowler owned a tract of land in the county of Gooch-land, *upon which said judgment was a lien ; and that this land had since come into the possession, and was then owned by Josiah Leake. He therefore asked that he might be substituted to the rights of the Commonwealth against said land, and that it might be subjected to satisfy him for the amount he had paid in discharge of the Commonwealth’s judgment.
    Fowler had removed from the Commonwealth, and in the progress of the cause his death was suggested, and his heirs not being known, the suit was revived against them generally, and they were proceeded against as absent defendants.'
    Leake answered the bill, and called for proof of the facts alleged therein.
    It appeared upon the proofs, that Fowler did own a tract of land in the county of Goochland at the date of the original judgment; that in September 1817, he conveyed that land to Ferguson and Leake, in trust to indemnify a certain John M. Smith as his surety; that in September 1818, the trustees sold the land under the trust deed, when Smith became the purchaser; and that in the fall of 1819, this land had come into the possession, and was still ownejd by Leake. The cause seems to have proceeded in the Court below upon the tacit admission that Fowler was the principal, and Miller a surety in the bond to the governor.
    In April 1838, the cause came on to be heard, when the Court made a decree subjecting the land in the possession of the defendant Leake to the satisfaction of the plaintiff’s claim ; and appointing commissioners to sell if; and also directing a commissioner of the Court to take an account of the rents and profits, or annual value of the land from the first of January 1820.
    From this decree Leake applied for and obtained an appeal to this Court.
    Stanard, and C. & G. N. Johnson, for the appellant.
    It does not appéar in this record, that Miller was the *surety of Fowler. He is a co-obligor in the bond; and in the absence of proof, must be presumed to have been a principal. The plaintiff’s claim to substitution, is, therefore, without any foundation, and on this ground must fail.
    But assuming that Miller was the surety of Fowler, the question arises, whether the Commonwealth had a lien upon the land in the possession of Leake; and .if there was such a lien, whether Ferguson can be substituted to it.
    We contend first: That the levy of the ca. sa. upon Miller, or the execution of the forthcoming bond by him, was, either of them, a discharge of the lien of the judgment. This Court has repeated^- decided that the levy of a ca. sa. is a discharge of the judgment lien. Beverley v. Brooke, 2 Leigh 425; Rogers v. Marshall, 4 Leigh 425 j Stuart v. Hamilton, 8 Leigh 503. The taking the body in execution is at common law a satisfaction of the judgment, not pro tempore or pro tanto, but forever. Even if a debtor is taken on a ca. sa. and takes the benefit of the insolvent debtors’ act, the creditor is not remitted to his remedy upon the lien of the judgment, but must rely upon the lien of his ca. sa. Rogers v. Marshall, supra; Foreman v. Loyd, 2 Leigh 284.
    It will not be denied, that as to Miller the lien of the Commonwealth’s judgment was lost by the service of the ca. sa. upon him; but it will be contended, that though the lien was lost as against Miller’s land, it still existed against the lands of Fowler. Can this be law?
    The judgment being joint, the execution which issues upon it must be joint. In this case the execution which was levied on Miller was a joint execution. Any other execution issued on the judgment must have been joint. Another ca. sa. might have been issued, and served upon the other joint debtors, until they were all *taken into custody; but as the law does not allow both the body and lands of a debtor to be taken, no execution could have gone out against the lands of Miller; and, therefore, none could have been issued against the lands of the other joint debtors. But the lien of the judgment arises from the capacity to sue out an elegit upon it; and when that can no longer bé done, the Hen of the judgment must of necessity be extinguished.
    Again, there never has been a time since the levy of the ca. sa. upon Miller, that the Commonwealth could have sued out an execution upon her judgment against Fowler. The ca. sa. levied upon Miller has been efficient to make the money. When, then, Ferguson executed the forthcoming bond as the surety of Miller, the lien of the Commonwealth’s judgment had already terminated; and there was, therefore, no lien existing at any time after he became bound for the debt to which he might be substituted.
    The same consequence results from the execution of the forthcoming bond. This has been held to be a satisfaction of the judgment. Garland v. Eynch, 1 Rob. R. 545. From the time of the execution of the bond, the Commonwealth had no right to issue execution upon her judgment. There was, therefore, no existing lien to which Ferguson might be substituted.
    But if it was competent to the Commonwealth to have resorted to her judgment lien against Fow'ler, upon her failure to make her money by the ca. sa. executed upon Miller, or the forthcoming bond executed by him, is Ferguson entitled to be substituted to her rights in this regard, against a bona fide purchaser for value? Ferguson was not the surety of Fowler. He was not originally bound for the debt; nor did he become bound for it at the instance of Fowler.
    The doctrine of subrogation is a creature of equity, not of contract. If one man pays the debt of another, at his request, or as his surety, it is a plain dictate of ^equity that he should be indemnified; and that he should be substituted to the remedies of the creditor. But a volunteer paying, not by agreement with the debtor, having no privity with him, has no legal remedy to recover what he has so paid, and, therefore, can have no claim in equity to be substituted to the remedies of the creditor. We challenge the production of a case where a volunteer has been substituted to the remedies of the creditor against his debtor. All the cases in which this doctrine has been enforced, will be found to be cases in which the person paying the debt, was bound for, or paid it, as the surety of the original debtor.
    We insist, then, that Ferguson is not entitled to the benefit of the Commonwealth’s lien on Fowler’s lands, either as standing in Miller’s shoes, because Miller not having paid the debt has no such right, or for having paid the debt himself, because as to Fowler, and those claiming under him, he was a mere volunteer.
    If the lien of the Commonwealth’s judgment was in existence, and Ferguson was entitled to be substituted to it, he was only entitled to have half the land sold.
    The act 2 Rev. Code, ch. 189, $ 8, p. 51, only applies to certain specified debtors of the Commonwealth; and Fowler is not one of them. The lien of the judgment must, therefore, be controlled by the general law on the subject; and that law restricts the lien to one half the land. This is clearly the case, unless the enquiry suggested from the bench be well founded, vis;: Whether the Commonwealth does not stand in the place of the Crow'n in England, and is not entitled here as the Crow'n is in England to a lien upon all the debtor’s lands.
    The law in England is thus stated: “If any one is accountant to the King, or if any money or goods, or chattels personal of the King, come to the hands of any subject by matter of record, or by matter in faith, the land of such subject is charged therewith, and liable *to the seizure of the King, into whatsoever hands it come afterwards.” The case of the Mines, Plowd. 321; Coke’s 2d Inst. 19; Seyntloo’s Case, Dyer 224 b. ; Fitzh. Nat. Brev. 268.
    This right of the King extends not only to judgments, recognizances, or debts ascertained by a Court of Record, but to all debts ascertained by regular and official evidence, or the return of a sworn officer, or the party’s own account rendered: and the lien commences from the time when the debt first becomes due. Bacon’s Abr. title Ex’on, letter K., and the cases before cited. The process by which the lien is enforced is a writ of extendi facias; and the form of the writ is peculiar. Tidd’s Prac. 943-44; Coke’s 2d Inst. 19. This preference and lien of the Crown is a guide in the administration of assets. 2 Wms. on Ex’ors 652-53. The lien is moreover strictly a branch of the royal prerogative ; Hobart’s R. 60; Bac. Abr. supra; Dyer & Plowden, supra; and the King is in the habit of remitting it at pleasure.
    This doctrine cannot be law in Virginia. The Commonwealth has never attempted to enforce such a lien against her debtors. We have no writ of extendi facias. The Commonwealth has no preference in the administration of assets. Nimmo v. The Commonwealth, 4 Hen. & Munf. 57; Commonwealth v. Eogan, 1 Bibb’s R. 520. The royal prerogative has been expressly abolished. in Virginia; and no instance can be given in which the government exercises any power by virtue of having succeeded without the authority of some statute, to any royal prerogative. We conclude, therefore, that the doctrine is not law in Virginia.
    The plaintiff below was not entitled to an account of rents and profits. This is too well settled to be argued.
    Eyons and Grattan, for the appellee.
    The question whether Miller was the surety of Fowler, is for the first *time, made in this Court. In the Court below, the fact was not disputed; and if proof had been required, might have been readily furnished. The bill charges the fact, and the answer does not deny it; but speaking of the debt as Fowler’s, calls for proof of it. But whatever Miller was, Ferguson was certainly a surety, and has paid a debt for which Fowler was bound to the Commonwealth to the whole amount.
    It is contended by the counsel for the appellant, that the lien of the Commonwealth’s judgment was discharged; first, by the levy of the ca. sa. upon Miller, and second, by the execution of the forthcoming bond.
    It is true, that the service of a ca. sa. puts a stop to any farther proceedings on the judgment, against the debtor in custody; and it is sometimes said, though with not much propriety, to be a satisfaction of the judgment. But if the debtor escapes from custody, or dies in prison, the creditor is remitted to his judgment, and his judgment lien. Stuart v. Hamilton, 8 Heigh 503;-Allen, J., in Garland v. Lynch, 1 Rob. R. S4S. And the taking a debtor on a ca. sa. upon a several judgment, does not prevent the creditor from using any other remedies against the other persons bound for the debt. Hayling v. Mullhall, 2 Wm. Bl. R. 1235. The counsel for the appellant admit that ca. sas. may be repeatedly issued, until all the debtors in a joint judgment are taken in execution. Now suppose Miller, when taken under the ca. sa., had, instead of surrendering property to the sheriff in discharge of his body, taken the benefit of the act for the relief of insolvent debtors. Upon their admission, this would not have prevented the Commonwealth’s issuing another ca. sa. upon its judgment; and yet it is certain that Miller could not have been taken in execution again, and the difficulty would have been obviated, by an endorsement on the execution that it was not to be served upon him; which is precisely the endorsement which would be *made in the case stated by the counsel, of a levy upon one joint debtor, and then a second execution issued for the purpose of taking the others into custody. Where, then, is the greater difficulty in issuing an elegit upon the judgment, after one of the joint debtors has been taken upon a ca. sa., and has taken the benefit of the insolvent debtors’ act, than exists in the case of a second ca. sa.; or, indeed, any difficulty which may not be obviated in precisely the same manner. The difficulty is not only no greater in its nature, in the last case than the first, but it is no greater in extent; as the point, of the merger of the lien of the judgment in that of a ca. sa. can ever arise, for any practical purpose, except in the case of a debtor in execution who takes the benefit of the insolvent debtors’ act.
    But the question, in this case, is not, what would have been the remedies of the Commonwealth against Fowler after the levy of the ca. sa. upon Miller, if that ca. sa. had proved unproductive. What they would have been in that event, it is bootless to enquire. The ca. sa. was productive; and the question is, what, in the case that has occurred, are the remedies of Miller, and the appellee standing in his shoes? If, when the ca. sa. was served upon Miller he had paid off the execution to the sheriff, or if he had delivered the slaves mentioned in the forthcoming bond at the time and place of sale, and the sheriff had sold them and paid the Commonwealth’s judgment, there can be no doubt, that he would, as the surety of Fowler, have been entitled to the benefit of the Commonwealth’s judgment lien upon Fowler’s land. He would have paid the debt of his principal, for which he was bound as surety; and if the Commonwealth had released her judgment lien upon Fowler’s land by the levy of the ca. sa. upon Milter, this fact, upon well settled principles of equity, would have operated as a release of the surety Miller. And thus, the effort to make the debt out of the surety, by means of a ca. sa. "'would have operated a release of the surety, and a release of the judgment lien upon the lands of the principal: an absurdity of which the law cannot be guilty. In the cases supposed, there can be no doubt Miller would have been entitled to be substituted to the creditor’s judgment lien. The principle of every case decided on the subject would give it to him. Eppes v. Randolph, 2 Call 103; Wright v. Morley, 11 Ves. R. 12; Hayes v. Ward, 4 Johns. Ch. R. 128; M’Mahon v. Fawcett, 2 Rand. 514; Enders v. Bruñe, 4 Id. 438; Watts v. Kinney, 3 Leigh 272; M’Clung v. Beirne, 10 Leigh 394; Craythorne v. Swinburne, 14 Ves. R. 160; Parsons v. Briddock, 2 Vern. R. 608. But if the counsel for the appellant are correct, that the Commonwealth’s judgment lien is extinguished by the levy of the ca. sa. upon Miller; and, therefore, Miller has no title to be substituted to it, then not only has Miller no title to the creditor’s remedy in this case, but, upon the same principle, the whole doctrine of substitution is an absurdity: for in no case, can the surety be entitled to be substituted to the remedies of the creditor, until the creditor is satisfied his debt; and then he has no remedies. But as we understand the doctrine, when the surety pays the debt to the creditor, although at law, the creditor’s remedies are extinguished, he having no farther occasion for them, yet in equity, the remedies of the creditor are considered as transferred to the surety, and as existing in full force for his benefit. And the remedies thus transferred must be all that the creditor had against the principal at the time of the judgment, or after-wards acquired; as, if he has released any, he has thereby released the surety.
    We hold it clear then, that Miller, if he had paid the debt to the Commonwealth, would have been entitled to be substituted to the lien of the judgment on Fowler’s land; and the question is, whether. Ferguson having paid the debt as the surety of Miller, is entitled to the ''"remedies to which Miller would have been entitled if he had paid it.
    For the appellant, it is insisted, that Ferguson is not entitled to the remedies of the Commonwealth, because as to Fowler he is a mere volunteer. The time has gone by when counsel could, in this Court, advance the proposition, that a purchaser for value from the judgment debtor stood in any better situation than his vendor. The judgment is a legal lien operating upon the legal estate, and as in all other cases of legal lien, the purchaser takes the estate cum onere: and the doctrine of notice has no application to it. Leake, then, stands in the place of Fowler; and the defence insists, that in a Court of Equity, where not the contracts, but the equities between the parties are to be administered, Fowler is to be heard to say: “True, my debt has been paid. True, it was my duty to have protected my surety Miller from being disturbed on account of it. True, that by my failure in the performance of this duty Miller has been taken in execution; and to be released, has been compelled to surrender his property in discharge of his body. But, nevertheless, although I might, if I had been in his situation, have called upon my friends for aid, to enable me to keep my property in possession until the day of sale, by executing a forthcoming bond, Miller, my surety, could not have this privilege, or he must have it under the penalty to his friend who aided him, of discharging me from all liability for the debt.” And. this is the equity of the case ! If this defence be sustained, then upon the same principle, in an action against the principal and surety, the principal may give bail, but the surety must not. So, the principal may take an appeal, but the surety must not. The principal may enjoin a debt, but the surety must not. And this, according to the counsel on the other side, is equity. But the defence is against authority as well as reason. M’Clung v. Beirne, 10 Leigh 394; Garland v. Lynch, 1 Rob. R. 54S.
    * Assuming that Ferguson is entitled to be substituted to the remedies of the Commonwealth, the next enquiry is, what is the extent of those remedies? We admit that the statute, 2 Rev. Code, ch. 189, '& 8, p. 51, only gives a remedy against lands by fi. fa. upon judgments against sheriffs, collectors, &c. ; but we insist, that on the ground suggested from the bench, the Commonwealth’s lien extends to the whole land of its judgment debtor. At common law the lands of the King’s debtor were only bound by judgments, or other debts of record, which were considered on the same footing with judgments; and it was by the statute of 33 Henry 8th, ch. 39, that this lien was extended to other debtors of the King. Bac. Abr. Execution, letter K. ; The King v. Smith, 6 Eng. Exch. R, 431. In the case of The King v. Smith, the cases cited on the other side from Plowden and Dyer, are reviewed and disapproved. Of the debtors whose lands were bound without judgment, were officers, receivers, and accountants; and our statute was obviously intended for their relief.
    Our statute repealing British statutes prior to the 4th year of James the 1st, expressly reserves all writs remedial, and judicial, and it is a fortiori, that common law writs continued to be existing remedies. It is said, however, that this remedy by extent is a part of the King’s prerogative ; and all royal prerogatives were abolished by the old constitution of Virginia. By the provision of the constitution referred to, it is true the Executive is forbidden to exercise any power by virtue of the royal prerogative; but this is only a royal prerogative, as the King was the proper authority to enforce the payment of debts due to the government; and in this respect, the Commonwealth of Virginia holds precisely the position that the King holds in England. Surely remedies are equally necessary to the Commonwealth here, as they are to the Crown in England; and as this is a common law remedy in England, and that *law is in force here, the remedy must exist here, as well as there.
    The decree for an account was erroneous, but the decree appealed from is an interlocutory decree, and may be corrected when the case goes back.
    
      
      He had been counsel in the cause.
    
    
      
       Judgments — Legal Lien. — To the point that the lien of a judgment constitutes a legal lien, the principal case is cited in Hill v. Manser, 11 Gratt. 525; Gordon v. Rixey, 76 Va. 702; Hutcheson v. Grubbs, 80 Va. 254; Werdenbaugh v. Reid, 20 W. Va. 591.
    
    
      
       Same — Same— Purchasers Take Legal Title Subject Thereto. — See the principal case cited in Gordon v. Rixey, 76 Va. 702; foot-note to Rodgers v. McCluer, 4 Gratt. 81.
      In Renick v. Ludington, 14 W. Va. 381, it is said;
      “The lands of a purchaser were before the act of 1843 liable to satisfy the lien of the judgment, not upon any presumption, that he had notice of the judgment, for in many cases he could not have notice, but because the lien of the judgment was the grant of the law, imported by the terms of the elegit. Taylor v. Spindle, 2 Gratt. 44; Leake v. Ferguson, 2 Gratt. 419.”
    
    
      
       Same. — Upon matters pertaining to judgments, see generally, monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
       Forthcoming Bonds — Subrogation of Surety. — See principal case cited on this subject in Hill v. Manser, 11 Gratt. 522, 525, and foot-note. See further monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
      Although a judgment is in fact extinguished by payment yet it is kept alive in contemplation of equity for the benefit of the sureties. Buchanan v. Clark, 10 Gratt. 173; Johnson v. Young, 20 W. Va. 661, both citing the principal case. See also, principal case cited in foot-note to Robinson v. Sherman, 2 Gratt. 178. See generally, monographic note on “Subrogation.”
      Sureties — Contribution.—See principal case cited in Harnsberger v. Yancey, 33 Gratt. 540; foot-note to Preston v. Preston, 4 Gratt. 88.
    
    
      
       Execution in Favor of Commonwealth. — At common law an execution for a debt or liability of a private person to another could not be levied of realty, but one in favor of the king or state could be. Gill v. State, 39 W. Va. 480, 20 S. E. Rep. 568, citing principal case and Jones v. Jones, 18 Am. Dec. 327. See principal case also cited in U. S. v. Humphreys, 26 Fed. Cas. 432.
    
    
      
      Chancery Practice — Enforcement of Judgment Lien —Account of Rents. — See principal case cited in Nelson v. Phares, 33 W. Va. 284, 10 S. E. Rep. 400
    
   ALLEN, J.

Most of the principles involved in this case have been settled by the adjudications of this Court. The lien of a judgment is a legal lien. The question of notice has no influence upon it, or had not until the passage of the recent statute requiring judgments to be recorded to preserve the lien. What influence that statute may have upon a purchaser with notice of an unrecorded judgment, it is not necessary now to consider, as this case must be decided according, to the law's previously in force. By those laws, the debtor was left in the enjoyment of the legal title, subject to the right of the judgment creditor to charge the lands; and the purchaser from the debtor took the legal title subject to the legal lien, whether a purchaser with or without notice of the judgment.

In this case the Commonwealth had obtained judgment. This gave her a lien upon the lands of the debtors, the extent of which will be considered hereafter. If on an execution against Fowler (supposed to be the principal debtor) his property had been seized, and a forthcoming bond been executed, this bond, if it proved effectual, would have operated as a satisfaction of the judgment. But this Court held in Garland v. Lynch, 1 Rob. R. 545, that the security in a forthcoming bond, upon the forfeiture thereof, became bound for the original debt; and in the case of Robinson & als. v. Sherman & als., ante, 178, that such security having discharged the debt, is entitled to be substituted to all the rights of the creditor against the original debtor. Those cases also decided, that the execution and forfeiture of the forthcoming bond by one of several joint debtors did not utterly discharge the original joint debtors; *but that if the forthcoming bond proved unavailing, it- would still be competent to proceed on the judgment against the other joint debtors, until satisfaction was obtained; and, therefore, that the security in a forthcoming bond given. by one, was entitled, on paying the debt, to the remedies of the creditor against the others. If Hiller then, in the case under consideration, were the surety of the original debtor, and had paid the debt, there could be no doubt, under these authorities, of his right to substitution to the lien of the judgment against his principal; unless, indeed, the form of the execution has operated some change in the rights of the parties. The creditor here resorted to the ca. sa., and after taking out a ca. sa. and getting it executed, he can no longer stand on the lien of the judgment. Rogers v. Marshall, 4 Leigh 425. This is certainly true, under the decisions of this Court, so far as respects the creditor, and with respect to the debtor on whom the ca. sa. is executed. Yet the service of the ca. sa. is not an actual discharge of the judgment. If it proves unavailing, should the debtor die in custody, escape, or take the oath of insolvency, the creditor,in the first two instances, is remitted to his original judgment; and in every case, where there are joint debtors, upon some of whom the ca. sa. has not been executed, he would, I presume, as against them, stand upon his original judgment after the ca. sa. remedy had been exhausted against the defendant served with process. Though it would not be competent to sue out a fi. fa. or an elegit against some of the defendants whilst others were in custody under the ca. sa., if the defendants in custody should die, or take the oath of insolvency, the creditor could sue out his elegit against the others. The capacity existing to take out the elegit, will preserve the lien of the judgment as against them, for when sued out, it must, by the terms of the writ, refer to, and bind all lands owned by the debtor at the date of the judgment.

*Where a fi. fa. is levied on a sufficiency of goods, the property of one of several defendants, a new execution cannot issue on that judgment until the levy is exhausted. So that if the levy proved effectual by the payment of the money, it might be contended with the same propriety, that the lien of the judgment was gone, and there could be nothing to which the security could be substituted. In almost every case of substitution, the debt as respects the creditor, has been paid; his claim is satisfied and discharged; but in equity, and for the benefit of the surety, it is not looked upon as extinguished, but transferred with all its obligatory force against the principal. Powell’s ex’ors v. White, &c., 11 Leigh 309. So that giving to the levy of the ca. sa. or the fi. fa. executed the effect of satisfaction, it would not take away the surety’s right to substitution. But the cases referred to clearly shew, that as respects the creditor himself, the service of the ca. sa. or levy of the fi. fa. are not a satisfaction of the judgment. It still subsists for the benefit of the creditor until satisfaction is actually made; and thus subsisting, when the surety in the forthcoming bond becomes bound for the debt, no act of the creditor can deprive the surety of the benefit of it. If on judgment against principal and surety, the latter pay the debt before execution, his right to be substituted to the lien of the judgment' would scarcely be controverted. The fact that he has been compelled to pay it under process of execution, either against his person or his property, cannot place him in a worse position. To hold that it did, would be to make his rights dependent on the caprice of the creditor. As .regards the latter, it may be the humane policy of the law to discourage the harsh process of execution against the body, and, therefore, to confine him to the lien of his ca. sa. executed when he resorts to that remedy. But his act should not deprive the surety of any right which once existed for his benefit. In this case, therefore, if *Miller, upon the service of the ca. sa. upon him, had paid the debt, it seems to me, he would have a clear right to substitution against the principal. He is responsible to his surety in the forthcoming bond who has paid it for him. His surety should then be permitted to stand in his shoes, and assert all his rights. Indeed, he occupies still higher ground, for this Court held in Garland v. Lynch, that the surety in the forthcoming bond becomes surety for the debt itself, under the terms of the law; and, therefore, a supplemental security for the original debtor; and, as regards the principal, he does not occupy the position of one voluntarily intromitting himself, in invitum. It was the duty of the principal to have discharged the debt and relieved his surety; failing in this, he cannot be heard to allege that the surety to relieve his person or property, which the law allows, has brought in another security who, upon paying the debt, may acquire rights against him.

It is objected that there is no evidence Miller was a security of Fowler. The bill avers it, but the answer puts the plaintiff upon proof of its allegations. This objection seems to have been taken for the first time in the appellate Court. Fowler appears to have been considered as principal throughout the case in the Court below; and it is probable evidence of the fact was not filed because of its notoriety. As the case must go back on other grounds, it is not necessary, to consider this objection farther. If the fact is as seems to have been conceded in the Court below, the proof can be supplied.

It is contended that there was error in directing a sale of the whole of the land instead of a moiety. If this were a new question, now for the first time to be decided, I should incline to think that the judgment of the Commonwealth bound the whole of the debtor’s lands. At the common law the body, land, and goods, of the debtor were liable to the King’s execution; for Thesaurus regis est pacis vinculum, et bellorum nervi. 3 Coke’ R. 12 b. ; ^Herbert’s Case. And though this arises from the royal prerogative, it is not a prerogative incident to the person of the King, but attaching to him in his political character as head of the State, and for public weal. The reason for its existence is as applicable to the government now as-it was before the revolution. The objection to the establishment of such a rule here, upon the ground that every debt of the King, whether of record or not, binds the debtor’s lands from the time of its creation, seems not to be well founded. The authority for the position is a remark of Gerard in the case of Mines, Plowden 310, spoken arguendo. The correctness of the remark was considered in the case of the King v. Smith, Wightwick 34, 6 Eng. Exch. R. 431. M’Donald, Chief Baron, reviewed all the authorities, and shews very clearly that lands of a simple contract debtor of the King, are not bound by such debt; that the debtors whose lands were so bound by the common law, were those whose debts were of record, or who were the King’s accountants, collectors, &c. whose debts were treated as debts of record.

In the absence of any statute of Virginia, or decision of this Court, there would be nothing in the nature of our institutions, or the preference claimed, to authorize us in saying that the Commonwealth had not the same rights which by the common law were possessed by the King. But by the act for the more speedy recovery of debts due to the Commonwealth, passed the 7th January' 1788, 12 Hen. Stat., p. 558, the right was given to take and sell, under a fieri facias, the lands of sheriffs and other public collectors, under judgments obtained after the passage of the act; and it was furthermore provided that judgments in favour of the Commonwealth should bind the lands of the sureties of such collectors, &c. We have seen that by the common law the lands of such collectors were bound from the creation of the debt, their debts being in the nature of debts *of record, from whence it is inferred that it was the intention of the Legislature to mitigate the rigour of the common law, by bringing down the lien from the creation of the debt to the date of the judgment ; and also to substitute the speedy remedy of a sale under a fi. fa. for the ex-tendi facias. It is most probable the Legislature did not consider the common law in regard to the King’s prerogative in force in Virginia, or there would have been no good reason for confining the remedy to judgments obtained after the passage of the act. If the lien existed and could have been enforced by an extendi facias, prior to the passage of the act, the remedy by sale under fieri facias would probably have been extended as well to prior as subsequent judgments. This construction is aided by the proviso to the first section, declaring that the act should not extend to securities who became so prior to the passage of the act: shewing that the Legislature did not design to increase the liabilities of securities by giving the act a retrospective operation. But if they had considered that the lands of such securities were bound by a judgment according to the common law, there would have been no necessity for such a proviso. The statute, however, has received a judicial construction, and as perhaps few questions of the kind can ever arise again under the lawas it existed prior to 1788, there is no good reason for disturbing it. Since 1788, a judgment in favour of the Commonwealth binds all the lands of a public collector. And by the act of 23d February 1822, Supplement to Rev. Code 339, the law is made general, and applies to all public debtors. The question upon the act of 1788, arose in the case of Nimmo’s ex’or v. The Commonwealth, 4 Hen. & Munf. 57. A judgment had been obtained against the sheriff in 1786. In 1799, a scire facias was sued out to revive the judgment against his executor, who pleaded fully administered. In his account adduced in support of his plea, he had charged himself *with the proceeds of a tract of land which his testator had devised to be sold. The General Court held he was bound to take notice of judgments against his testator, and disallowing his credits, charged him with the proceeds of the land sold as legal assets. In the petition for a supersedeas, it was assigned for error, that the proceeds of the land were equitable assets, and as such distributable pari passu among all the creditors of the testator; and that if even legal assets, the bond debts were entitled to a share, since the judgment was prior to the act of assembly subjecting lands to the judgment of the Commonwealth.

Another question was discussed, whether the act of limitations was not a bar to the scire facias. All the Judges held that it was not; and so holding, it would have necessarily followed, if the judgment rendered prior to the act of 1788, bound all the lands of the defendant, the Commonwealth would have been entitled to the proceeds. Judge Tucker, as to this branch of the case, says: “The act making sheriffs’ lands liable to the Commonwealth’s judgments did not pass until eighteen months after the judgment in this case;” and held that the General Court should have disregarded the proceeds of the land as not being legal assets, leaving the Commonwealth to pursue her remedy for a due proportion thereof pari passu with the other creditors. Judge Roane said the judgment was ‘eminently erroneous in all the particulars stated in the last seven errors assigned,” (embracing the two herein mentioned.) He referred to the reasons given; adopted them as his opinion on that part of the cause; stating further, they were all assented to by the unanimous opinion of the Court. Judge Fleming concurred, and the decree of the Court affirmed that the proceeds of the land were not legal, but equitable assets, which did not enure to the Commonwealth by virtue of her judgment, and she was only entitled to come in with the other creditors pari passu. So far as ^respected a moiety of the proceeds, this decision, according' to the settled course of adjudications since, would be held clearly erroneous; for a judgment in favour of the Commonwealth should at least be entitled to as much respect as a judgment in favour of an individual ; but this perhaps was an inadvertence. The attention of the Court was directed exclusively to the act of 1788, and the rights it conferred; and the decision is express, that neither by virtue of it or any pre-existing law, was the Commonwealth entitled to a lien on the lands of its debtor. Thus virtually deciding that this branch of the prerogative was not' in force in Virginia, or was disaffirmed by the act of 1788. Yielding to this authority, I am of opinion that as this is the case, not of a public collector provided for in the act of 1788, but of a general public debtor, against whom judgment was rendered prior to the act of 1822, the Commonwealth had no greater rights than are conferred by a judgment in the case of an individual; and it was therefore erroneous to decree a sale of more than a moiety of the land. Stileman v. Ashdown, 2 Atk. R. 477.

There was also error in directing an account of the rents and profits of the land from the time of the purchase. The security is seeking to be substituted to a mere legal right. On an elegit there is no estimate of the past annual value, with a view to the recovery thereof; and the security here can claim no other rights.

For these errors, I think the decree must', be reversed, and the cause remanded. e

The other Judges concurred.

The decree of the Court was as follows:

The Court is of opinion, that under the pleadings in this case, it was premature to decree in favour of the appellee without some proof that Fowler was principal and Miller was security in the original debt. The *Court is further of opinion, that if that fact is made to appear, the said Miller and the appellee as standing in his shoes will be entitled to be substituted to the lien of the Commonwealth’s judgment against the lands of the said Fowler. The Court is further of opinion, that the lien of the judgment in favour of the Commonwealth in this case, extended to but a moiety of the lands of the debtor, and therefore that there was error in decreeing a sale of the whole tract. The Court is further of opinion, that there was error in directing an account of the rents and profits of the land.

Therefore the decree is reversed with costs, and the cause is remanded for further proceedings according to the principles of this decree.  