
    *Robinson & als. v. Sherman & als.
    July Term, 1845,
    Lewisburg:.
    [44 Am. Dec. 381.]
    (Absent Stanard, J.)
    i. Forthcoming Bonds — Joint Debtors — Forfeiture-Original Debt. — A judgment is obtained against three persons, and execution is issued thereon, which is levied on the property of one of them, who, thereupon, gives a "bond with surety for the forthcoming and delivery of the property on the day of sale; and this bond is forfeited. HKJ/f). The execution and forfeiture of the bond did not discharge and extinguish the original debt, as against the other joint debtors.
    2. Same — Same—Sureties—Subrogation,—The surety of a joint debtor, in a forthcoming bond, becomes, upon the forfeiture thereof, surety for the debt; and when he has discharged it. is entitled to be substituted to all the rights of the creditor against the original debtors, subsisting at the time he became so bound for the debt.
    3. Same — Same—Same—Recovery by. — The surety in a forthcoming bond is entitled to recover from the original debtors the principal, interest, and costs of the original judgment; but not the costs incurred by the execution and forfeiture of the forthcoming bond.
    4. Same — Same—Same—Original Debtors — Liability.— The original debtors are each bound for the whole amount of the debt, to the surety in the forthcoming bond who discharges it.
    On the 27th of April 1829, John Dewitt, George Richardson, and Henry Sherman executed their joint and several single bill to A. & S. M’Culloch, for 145 dollars 75 cents, payable in eighteen months, with interest from the date. On this bill suit was brought in the County Court of Jackson, and a judgment was rendered against all the obligors, in November 1832. An execution issued on this judgment, which was levied on the property of Dewitt, who gave a forthcoming bond with John Robinson and David Rarden as his sureties. This bond having been forfeited, execution was awarded thereon in 1833, which was again levied on the property of Dewitt, from the sale of which the sheriff returned he had made the sum of 36 dollars 57 cents.
    ^Whilst the last execution was in the hands of the deputy sheriff, it was assigned to him by A. & S. M’Culloch, without recourse, and was by the deputy sheriff assigned to William Bonnett.
    On the return of this execution, a capias ad satisfaciendum vsas issued against Dewitt, Robinson and Rarden, and being served upon them, Dewitt was discharged under the act for the relief of insolvent debtors, and Robinson and Rarden were committed to prison, and executed bonds to keep within the prison rules.
    Whilst thus in custody, Robinson ana Rarden applied for and obtained injunctions to the execution upon the forthcoming bond, from one of the Judges of the General Court. In their bills they alleged that they had been induced by the deputy sheriff to sign the forthcoming bond, and that they signed it upon the express agreement that Sherman as well as Dewitt were to sign it as principals; that Sherman did not sign it; and that after it was forfeited an award of execution was obtained upon it, without any notice to them; and although it appeared by the record that thejr appeared by counsel and opposed the motion,, that in fact, the counsel who appeared in the case, was only the counsel of Dewitt, and had no authority from them to act in the case.
    The bill farther stated the execution of the original note by the three obligors, and the judgment thereon against all of them; and that they were all interested in the contract out of which it arose; and insisted that if Robinson and Rarden were liable as obligors in the forthcoming bond, they were entitled to be substituted to the rights of the creditors against Richardson and Sherman. They, therefore, made the M’Cullochs, Richardson, Sherman, the high sheriff, and the deputy, parties to the bill, and asked that all parties might be enjoined from proceeding on the forthcoming bond against them; or if they are to be held responsible on the forthcoming bond, that they may have relief against Richardson and Sherman.
    *The M’Cullochs, Sherman and the deputy sheriff answered the bill, and it was taken for confessed as to the others. The first stated that they had assigned their judgment to the deputy sheriff without recourse, and they, therefore,.had no interest in the subject. Sherman denied that he was a principal in the single bill executed to A. & S. M’Culloch, but said he was the surety of Dewitt; but the proofs sustained the bill in this respect. He denied, too, that he had ever agreed to sign the forthcoming bond; and said that he was opposed to its being given, as the execution was then levied on the property of Dewitt, and he desired it should be sold to satisfy the judgment. The deput3 sheriff denied the allegations of the bills, that there was an agreement, between himself and the plaintiffs, that Sherman should execute the forthcoming bond; and there was no proof of the fact.
    In April 1841, the injunctions were dissolved, and the plaintiffs had leave to carry on the causes as original suits. In April 1842, the death of John Robinson was suggested, and the suit was revived in the name of Lydia Robinson, his administra-trix, and then the causes coming on together to be finally heard, the bills were dismissed with costs.
    From the decrees dismissing the bills, the plaintiffs obtained an appeal to this Court.
    B. H. Smith, for the appellants,
    referred to 1 Story’s Equity 474 to 481; Powell’s ex’x v. White & ais., 11 Leigh 309; Garland & ais. v. Lynch, 1 Rob. R. S4S; Weaver v. Tapscott, 9 Leigh 424; Theobald on Principal and Surety, 1 Law Libr. 134 and 135.
    Fisher, for the appellees,
    referred to Blow v. Maynard, 2 Leigh 29; Chapman v. Harrison, 4 Rand. 336; Dickinson v. Sizer, Id. 113; Caldwells v. Shields & Somerville, 2 Rob. R. 305; Garland v. Lynch, Id. 545; Powell’s ex’x v. White, 11 Leigh 309.;
    
      
      He had been counsel in another cause involving the same question, and which the Judges then had under consideration.
    
    
      
       Forthcoming Bonds — Forfeiture—Joint Debtors. — In Leake v. Ferguson, 2 Gratt. 431, the principal case and Garland v. Lynch. 1 Rob. 54B, are cited for the proposition that the execution and forfeiture of a forthcoming bond by one of several joint debtors does not discharge the original joint debtors; but that if the forthcoming bond proves 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.
    
    
      
      Sureties — Subrogation.—The rule is well settled that a surety paying the debt of his principal, or a security paying a judgment for another, is entitled to all the liens, sureties, rights and remedies of the creditor against the principal debtor, subsisting at the time he became bound for the debt For this proposition the principal case is cited as authority in Conaway v. Odbert, 2 W. Va. 36; Dent v. Wait, 9 W. Va. 44; Myers v. Miller, 45 W. Va. 595, 31 S. 15. Rep. 983; Leake v. Ferguson, 2 Gratt. 419; Hawker v. Moore, 40 W. Va. 49, 20 S. E. Rep. 848; Johnson v. Young, 20 W. Va. 661: Buchanan v. Clark, 10 Gratt. 173. See also, Powell v. White, 11 Leigh 309; Preston v. Preston, 4 Gratt. 88, andaoie; and generally, mon-ograpic note on "Subrogation.”
      Same — Forthcoming Bond. — A surety in a forfeited forthcoming bond is a surety for the debt; and when he pays it as such surety, he is entitled to all the rights of the creditor against the original debtor, subsisting at the time he became bound for the debt; and the judgment for the benefit of the surety so paying is not regarded as extinguished, but transferred with all its obligatory force against the principal, and constitutes a legal lien upon his real estate owned at the date of the judgment, and thereafter acquired. Hill v. Manser, 11 Gratt. 525, citing Garland V. Lynch, 1 Rob. 545; Powell v. White, 11 Leigh 309; Robinson r. Sherman, 2 Gratt. 178; Leake y. Ferguson, 2 Gratt. 419. See foot-note to Hill v. Manser, 11 Gratt. 522.
      The principal case is cited for this point in Cooper v. Daugherty, 85 Va. 350, 351, 7 S. E. Rep. 387. See also, the principal case cited in Harnsberger v. Yancey. 33 Gratt. 540.
    
   *ALLEN, J.,

delivered the opinion of the Court.

■ The Court is of opinion, upon the authority. of Garland v. Lynch, 1 Rob. R. 545, that the execution and forfeiture of the forthcoming bond in the bill and proceedings mentioned, did not discharge and extinguish the original debt, as against the other joint debtors. That notwithstanding the execution and forfeiture of the forthcoming bond, it would have been competent for the creditor, in case the forthcoming bond had proved unavailing, to have proceeded against the other joint debtors for satisfaction of his debt.

The Court is further of opinion, that the sureties of one of the joint debtors in the forthcoming bond, became, upon the forfeiture thereof, sureties for the debt; and if they have subsequently discharged the same, they are entitled, .upon the principles, of a Court of Equity, as affirmed in Powell v. White, 11 Leigh 309, to be substituted to all the rights of the creditor against the original debtors, subsisting at the time they became so bound for the debt; and that notwithstanding the subsequent payment of the debt, the sureties who have paid it, are entitled to treat the original security of the creditor as still subsisting for their benefit.

The Court is further of opinion, that the sureties are entitled to charge the original debtors with the debt, interest, and the costs'of the first judgment at law, but have no claim against'them for-the costs incurred by the execution and forfeiture of the forthcoming bond, or for the damages incurred by the injunction. That in ascertaining the amount for which they are entitled to a decree agáinst the other joint debtors, or either of them, as each is liable to them for the whole debt, the amount made out of the property of the said Dewitt, should be applied first to the payment of the costs incurred by the execution of the forthcoming bond, and the residue so collected should be applied to reduce the amount of the original debt, interest,' and the costs of the first judgment *at law, and that the sureties are entitled to decrees against the said Henry Sherman alone, or the said Sherman, Dewitt and Richardson jointly, upon bringing the latter before the Court, for the balance of the original debt, interest and costs, to be apportioned between the sureties according to the sums paid by them respectively, together with their costs in these suits. The Court is further of opinion, there was no error in the decree dissolving the injunction, and dismissing the bill as to all the parties except said John Dewitt, George ' Richardson and Henry Sherman.

The Court is, therefore, of opinion, that so much of said decree as conflicts with the principles above declared is erroneous, and that the residue thereof should be affirmed. The decree is, therefore, reversed with costs, against Sherman and Dewitt, and affirmed as to the Residue, with costs to the other appellees; and remanded to be finally proceeded in according to the principles above declared.  