
    Williams and Wynne vs. Wright.
    1. It is a principle of equity, that a valid agreement between the creditor and the principal debtor, for delay without the consent of the surety, discharges the surety, but it seems to be questionable whether this principle applies after judgment. It certainly would not apply unless the surety should exhibit some satisfactory reason why he did not proceed to indemnify himself by the statutory remedies in his favor against the principal.
    2. The court is inclined to the opinion, that the taking a delivery bond, and forfeiture of it, is not a discharge of the judgment as to other defendants in the judgment, who did not join in the delivery bond. The proper forum for trying this question is a court of law; not a court of equity.
    3. A court of chancery has the power to restrain the sale of slaves, where the title is clear, and where a trespass is attempted, as where the slave of a person is levied on to satisfy the debt of another. This principle does not apply where the slave levied on is the property of the defendant in the execution, but the validity of the execution or the justice of the judgment is contested.
    Wright obtained judgment against Williams and Wynne, sureties, and McDaniel, principal; execution was issued against the defendants, and levied on a slave, the property of the principal; the principal gave a delivery bond, with a surety. In this the original sureties did not join. The slave was not delivered, and a second execution was issued against all the defendants and the surety in the delivery bond. This execution was stayed indefinitely by a written order to the sheriff on the fi. fa. made by the plaintiff Wright. There was much evidence to show that Wright agreed to delay the enforcement of the judgment in consideration of ten per cent, for the time it was stayed. After' the lapse of about two years, a third execution was issued against all the defendants, and it was levied on a slave, the property of Williams.
    Williams and Wynne filed this bill in the Chancery Court at Gallatin, to restrain the sale of the slave, and have themselves discharged from the operation of the execution, and a decree was entered accordingly by the presiding Chancellor.
    
      J. C. Guild, for the complainants.
    1. The taking the delivery bond and forfeiture, operates as a judgment, against the obligors in such bond, and discharges the defendants in the original judgment, who did not join in the bond. 3 Yer. 297; 6 Yer. 266; 8 Yer., 160; 3 Hum., 532; 4 Hum., 385; 7 Hum., 273.
    2. A court of chancery has jurisdiction to restrain the sale of a family servant, attempted to be sacrificed to satisfy'an execution to which he was not justly liable. The jurisdiction of the court may be sustained on the further ground that the plaintiff in the judgment below was attempting to make an improper use of, and to abuse the process of the court.
    3. Wright had acquired a lien on the property of the principal debtor. He made a valid agreement to stay execution, and did stay it for a most unreasonable length of time. He thereby lost the lien, and the principal became insolvent. In such case chancery takes jurisdiction, and it would be most iniquitous that this judgment should be enforced against complainants. Ireland (Bank) vs. Beres-ford, 6 Dow., 238, 4 Bing., 464; Rex vs. Berrington, 2 Yes. jr., 540; Keath vs. Rey, 1 Y. and J., 434, 6 Yes. jr., 734; Wright vs. Simpson, Neshii vs. Smith, 2 Bro., Ch. R., 579; Scanland vs. Settle, Meigs, 169; Story’s Equity, sec. 502.
    
      Baldridge, for defendant.
    The principal question in this case is, whether the levy, the delivery bond having been forfeited, satisfied the judgment, so that no other execution upon it could properly issue, except against the obligors in the forfeited delivery bond.
    The principle on which the former cases have been decided by this court is, that the first levy is a satisfaction of the judgment, and that no other execution can, therefore, issue upon it. So that where a delivery bond has been taken and forfeited, the plaintiff at law could only proceed against the obligors in the bond, and not the defendants in the judgment, except such as had signed the delivery bond. Whitcomb vs. Read, 3 Yer., 298; 5 Yer., 227; 6 Yer. 248 and 305; Brown vs. McDonald, 8. Yer., 158.
    These cases are in conformity with our acts of assembly previous to the act of 1831, chap. 25.
    We now contend, that by the act of 1831, above cited, important changes were made in the law upon this subject. That by the act of 1831, the execution, after the bond is forfeited is directed to issue, not only against the obligors in the bond, but also against all the defendants in the judgment, whether they have signed the delivery bond or not.
    
      The language upon this subject (see 2nd section) is, that “ it shall be the duty of the sheriff or other officer, holding said execution and bond, to proceed to levy upon so much of the property of the defendant or defendants in said execution, if to be found, as shall be sufficient to satisfy the same. And if there shall not be property enough of said defendant or defendants found to satisfy said execution, then it shall be the duty of such officer, holding said execution and bond, to proceed to levy upon the property of the securities,” &c.
    But further, in a subsequent part of this section it is directed, that an alias or pluries is to issue, but against whom? The act directs, that upon the return of the execution and forfeited bond, the clerk or justice, as the case may be, shall “ issue an alias or pluries execution, as the case may be, against the defendant or defendants to the judgment, for the whole of the unsatisfied balance of said judgment, and also against the sureties in the forfeited bond, &c.” By which it is declared, that in the case of a forfeited bond the judgment is not 'satisfied by the levy, but the clerk and justice is directed to issue “ an alias or pluries, for the whole of the unsatisfied balance of said judgment. Not against the obligors in the bond only, but also “ against the defendant or defendants to the judgment.” So by the act of 1831, above cited, the alias or pluries fi. fa. is to be against the original defendants, and also the obligors in the bond, and further by this act, the property of all the defendants to the judgment must be exhausted before the securities to the bond are liable.
    But by the act of 1829, chap. 51 (repealed by the act of 1831,) it was provided that a judgment should be taken upon the forfeited bond “against the original defendant or defendants therein, and the security or securities in said delivery bond, on which an execution shall issue.”
    By the act of 1829 no alias or pluries execution could properly issue after a levy upon personal property, sufficient to satisfy the judgment. It, however, provides a remedy upon the bond, and upon that only. If then any of the original defendants had not signed that bond no execution could issue against them. But by the act of 1831, above cited, no other judgment is necessary, and you are to issue an alias or pluries fi. fa., as if no levy had been made, or no bond forfeited, except only you are to include the names of the securities to the bond.
    Does it not follow, from the provisions of the act of 1831, that the original judgment is not satisfied when a bond is given or forfeited ? And the provision to issue an alias or pluries fi. fa. therein provided for, could not be carried out, if the judgment is considered satisfied; for no execution can legally issue on a judgment which is satisfied.
    But suppose that it may be considered, that the act by its operation, does not prevent the satisfaction of the judgment, but that it gives another remedy, in the case of a forfeited delivery bond, and that the alias fi. fa. does not issue upon the original judgment; still it is contended that the provision of said - act requires the subsequent execution to be issued against all the defendants to the judgment, whether they signed the bond or not, and that the property of all the original defendants must be exhausted before the securities in the bond can be reached. It follows then that complainants are not released by virtue of the levy.
    But it is said that the complainants are the securities of Me,Daniel on the note, and the delay in this case has discharged them. To which defendant says he had no knowledge of the fact, previous to filing the bill in this case, and if he had, it would have made no difference, inasmuch as delay after judgment, even for a consideration, does not discharge the securities. Pey vs. Poston, 10 Yer. Ill; Grimes vs. Nolen, 3 Hum., 412.
    It will be noticed by the court, that the plaintiff at law did nothing to prevent the satisfaction of the execution, upon which the levy is endorsed, and for which the delivery bond was given and forfeited. This execution and bond was duly returned, and an alias issued which was not levied by the sheriff at all, and- this is the one the plaintiff allowed to be returned upon the application of the sheriff, finding that it was too near the return term to levy and self, and knowing he could obtain another at any time. This is the only delay ever granted by him, except mere negative forbearance. The execution levied was never interfered with by the plaintiff at law in any manner whatever tending to prevent its being satisfied, out of the property levied on, but the bond was given and forfeited, without his agency, and so that he had no power to prevent it. And the plaintiff at law and defendant here contends and the proof shows that he has done nothing to release any levy which has been made. He was not present when the levy was made or bond given, nor did complainants ever require of hi m to proceed and make his money out of McDaniel, or any one else.
   McKinney, J.

delivered the opinion of the court.

It appears from the record in this case, that in January, 1844, F. L. McDaniel as principal, and the complainants, Williams and Wynne, as his sureties, made a note for two hundred and twelve dollars, payable to David Johnson, which the latter assigned to the defendant Wright. Suit was brought upon said note in the Circuit Court of Sumner, against all the parties, and judgment was obtained thereon on the 17th day of June, 1845, for two hundred and nineteen dollars and ninety-five cents, exclusive of costs. On the 21st day of July, 1845, execution issued upon said judgment, and on the 8th day of October thereafter was levied upon a slave, the property of the defendant, McDaniel. At the time of the levy, McDaniel executed a bond for the delivery of said slave on the day of sale, with Fleming Cocke as surety, which bond was forfeited by the non-delivery of the slave.

On the 22d day of December, 1845, an alias execution was issued upon said judgment against all the original defendants, and also against Fleming Cocke as surety in the forfeited delivery bond. This execution, without being levied, was returned to the office by the sheriff, with the following endorsement thereon, made by the present defendant Wright, viz:—

I agree to stay the collection of the fi. fa., February 2nd, 1846. William Weight.”

After the lapse of more than two years, viz, on the 22d day of March, 1848, another execution was issued upon said judgment, against all the last mentioned parties, which was levied upon a slave, the property and family servant of the complainant Williams. And this bill is brought to enjoin the sale of said slave, and also to obtain -a perpetual injunction, restraining the defendant Wright from proceeding to enforce the collection of said judgment as against the complainants, upon the ground that they are discharged from all liability thereon.

They allege in the bill, that they did not join in the delivery bond, and had nothing to do with the execution thereof; that the slave of McDaniel levied upon was of value more than sufficient to have satisfied the judgment; and regarding themselves as discharged from all liability by said levy and execution of the delivery bond, they paid no further attention to the matter. They further allege, that the agreement of the defendant to suspend^ the alias execution, was without their knowledge or consent, and that time was given McDaniel, upon an agreement between him and the defendant, that the former should pay to the latter at the rate of ten per cent, interest for the delay. And upon the foregoing grounds the complainants insist that they are discharged from liability upon said judgment.

The defendant, in his answer, denies the agreement stated in the bill, and says, that he assented to the return of the alias execution unsatisfied, as a matter of accommodation to Johnson, one of the defendants therein : that such assent was not given upon any consideration whatever, and that there was no stipulation for any definite suspension of execution... He further states, as a reason why no other step was taken to enforce collection of said judgment before the early part of 1848, his absence in Mexico, during a great part of the time, and the refusal of the sheriff to discharge his duty.

We think it very clear that upon the ground of delay, were the facts charged in the bill admitted to be true, the complainants are entitled to no r'elief. There was no valid agreement for any definite delay; no consideration ; nothing to have precluded the defendant, Wright, from taking out another execution at pleasure, at any subsequent time, and much less to have, in the slightest degree, interfered with the complainants, as sureties, to have availed themselves of the ample and summary remedies given by our law for tbeir indemnity against their princi-pa]. And if the principle of equitable relief, insisted upen in this case, be at all applicable to the relation of principal and surety, after judgment, which to say the least is extremely questionable, it will perhaps be found indispensably necessary that the surety should allege in his bill some reasonable ground for his failure to pursue the legal remedy afforded him by statute.

The remaining ground of relief is, that the levy upon the slave of McDaniel and the execution and forfeiture of the delivery bond given by him to the sheriff, operated in law as a satisfaction of the original judgment, and consequently as a discharge of the liability of the complainants thereon, and in support of this proposition, we are refered to previous adjudications of this court.

Upon a careful examination of the act of 1831, chap. 25, we are not prepared to hold, that the levy of an execution upon personal property of one of several joint defendants in a judgment, and the taking a delivery bond with security from such defendant, by the sheriff, which is forfeited, will operate as a satisfaction of the judgment, or discharge the liability of such of the defendants as may not have joined in the delivery bond. We incline to the opinion, that by the proper construction of the act of 1831, such -will not be the legal effect.

But were the law admitted to be otherwise, as insisted upon by the complainants’ counsel, it is very clear that such discharge would constitute matter of pure legal defence, of which a court of equity would not entertain jurisdiction, unless there existed in the case some other independent ground of equitable relief. Such is not the case under consideration. The complainants, from the face of the bill, had an ample and unembarrassed remedy at law, in the court where the execution issued, by super-sedeas and motion to quash, a remedy much more simple, direct, and summary, and less onerous to the parties, than that of which they have attempted to avail themselves in this case, if there existed a concurrent jurisdiction in equity, which is not admitted. The nature of the property cannot affect the question of jurisdiction in the present case. It is true that it has grown into a settled principle of our equity jurisprudence, that a court of chancery will interpose to preserve the relation of master and slave, and to protect the possession and right of the former in this peculiar property, where the title is clear and indisputable. But this is only as against trespasses, as where it is attempted to subject the slave of one person to levy and sale as the property of another.

This jurisdiction is exercised, upon the principle, that owing to the nature of the property, a recovery in damages in an action at law, would, in many cases, be no adequate remedy.

But the levy, in this case, upon the slave of the complainant Williams was no trespass. He was a party to the judgment, and his property of every description, subject to execution, was liable to be seized for its satisfaction. If, for any valid reason, the execution itself was either void or voidable, the appropriate remedy was in the court whence it issued, in the mode before indicated. And upon this ground we affirm the decree of the Chancellor, dismissing the bill.  