
    Oase 98 — PETITION EQUITY —
    March 5.
    Milliken v. Dinning.
    APPEAL PROM SIMPSON CIRCUIT COURT.
    1. A SURETY IN' A JUDGMENT DEBT BECOMES A PRINCIPAL IN THE BOND BY WHICH THAT JUDGMENT IS REPLEVIED.
    Under the provisions of section 11, chapter 97, Revised Statutes (2 Stanton, 400), for the relief of sureties in bonds having the force of a judgment, the surety in a judgment debt, who signs a bond by which that judgment is replevied, must be regarded as a principal in such bond.
    2. A surety in a judgment debt, who signs a bond replevying such judgment, being a principal in the replevin bond, is not released from liability on such bond by the plaintiff’s failure for the space off a year to issue execution.
    S. A surety in an obligation will be released by the seven years’ limitation, although the debt in tbe mean time bas been merged first by a judgment and again by a replevin bond.
    J. E. Underwood, For Appellant,
    CITED
    Revised Statutes, sec. 11, chap. 97, 2 Stanton, 400.
    
      
    
    CITED
    Revised Statutes, section 11, chapter 97.
   JUDGE HARDEST

delivered the opinion oe the court.

The appellee having recovered a judgment for three hundred and fifty-nine dollars and thirty-seven cents against William Walton and the appellant W. W. Milliken, on their joint promissory note, on the 2d day of January, 1866, they, with George H. Milliken, their surety, replevied the judgment before the clerk of the court, in the manner prescribed' by section 1, article 9, chapter 36 of the Revised Statutes. Part of the debt was jsaid by Walton, and for the balance an execution was issued against him and the appellant only on the 16th of March, 1868; and to enjoin that execution the latter brought this -suit, claiming exoneration mainly on the ground that, being the surety of Walton in the original debt, he was still a surety in the replevin bond, within the meaning of section 11 of chapter 97 of the Revised Statutes, and as such was thereby released from liability by the failure of the plaintiff to have an execution issued on the bond for more than one year while he was entitled thereto. The circuit court, on the trial, dissolved the injunction and dismissed the action; and from that judgment this appeal is prosecuted.

Although the original obligation was merged in the judgment, and that in the replevin bond, the relations and rights of the appellant, as surety of Walton, remained, for most purposes, unaffected; and he might after as before the debt was replevied have claimed exoneration under the comprehensive limitation of seven years, prescribed by the statute, if the requisite delay had occurred. But construing the bond as we do, with reference to its form and import, as well as the object of the law which authorized its acceptance by the clerk, the appellant, in view of the provisions of said section 11, for the relief of sureties in such bonds, must be regarded as a principal and not as a surety. It seems to us also that there was no such binding stipulation for indulgence to Walton, upon his promise to pay usurious interest, as to release the appellant as his surety.

Whereupon the judgment is affirmed.  