
    Richmond.
    Humphrey v. Hitt.
    1850. January Term.
    
    (Absent Cabell, P. and Brooke, J.)
    A mere countermand of an execution by a creditor after it goes into the hands of the sheriff, but before it is levied, does not release a surety of the execution debtor.
    This was an injunction to two judgments recovered by Thomas Humphrey against Daniel Hitt, in the County court of Fauquier. The pleadings and proofs make out the following case :
    
      Thomas Humphrey instituted two actions of debt in the County court of Fauquier, against William G. 
      
      Yerby and Daniel Hitt. The actions were upon bonds, one of them for 190 dollars, and the other for 200 dollars, in which Yerby was the principal and Hitt was his surety. The writs having been first served upon Yerby, separate judgments were obtained against him ; and at a subsequent term of the Court, there were judgments against Hitt.
    
    Executions were issued in May 1841, upon the judgments against Yerby, which went into the hands of Weaver, a deputy sheriff; and they were levied, and forthcoming bonds were taken and forfeited. Executions of fieri facias were issued in May 1842, upon these forfeited forthcoming bonds, which went into the hands of Baker, a deputy sheriff. Whilst these executions were in the hands of Baker, Weaver apprehending that he might be held responsible for having taken insufficient security in the forthcoming bonds, applied to the attorney for the plaintiff to be permitted to take out executions of capias ad satisfaciendum against Yerby and his surety in the forthcoming bonds, and by the consent of the attorney, obtained from the clerk such executions, and with them in his possession, he went with Baker to the house of Yerby ; the object of the visit being to levy either the one or the other set of executions. When they arrived at Yerby’s house, he produced to Baker a written order from the plaintiff to return the executions to the clerk’s office, there to remain until his further order; and in pursuance of this direction, Baker, without levying the executions, returned them to the office, with the return endorsed thereon, that they were returned by plaintiff’s order. The ca. sas. were returned without any return endorsed: Humphrey, who lived in Loudoun county, does not appear to have heard of the issue of these executions.
    
      Yerby, who was examined as a witness, states that at the time the executions were countermanded, he had property in his possession liable to the executions, suffieient to satisfy them if they had then been levied ; but it was afterwards applied to pay other debts; that his land was sold under liens and sacrificed, and he was thus stripped of all he could call his own. Weaver says, that whilst he was riding as sheriff in 1841, he had levied several executions against Yerby upon his property. That the levy was on all the property he could find in the possession of Yerby. That he made several sales at different times, which satisfied the executions levied by him. And he supposed the property left after satisfying these executions, was worth about 150 dollars. But he thought the debts might have been made out of Yerby, and therefore obtained leave from the plaintiff’s attorney to take out the ca. sas.
    
    Executions having issued upon the judgments against Hilt, he applied to the Judge of the Circuit court of Fauquier county for an injunction to stop proceedings thereon; which was granted. And when the cause came on to be heard, the injunction was perpetuated. From this decree Humphrey applied to this Court for an appeal, which was allowed.
    
      Morson, for the appellant.
    There is no case in our books which says that a mere countermand of an execution will release the surety : And there are two cases in which the opposite doctrine is held. M'Kenney v. Waller, 1 Leigh 434; Alcock v. Hill, 4 Leigh 622. This is a question occurring every day, and is every day presented to counsel and parties; and it especially demands the application of the maxim, “ stare decisis.” Take it that reason, policy and sound philosophy would prescribe a different rule if the question was res integra, yet it is more important that the question should be settled, than how it has been settled.
    It may be said that some doubt has been expressed of the correctness of these decisions: but two express decisions are surely of more authority than a mere obiter 
      opinion. In the case of Chichester v. Mason, 7 Leigh 244, which is supposed to have shaken the previous decisions, two of the Judges, in a Court of four, lay down the rule as was laid down in the previous cases. Judge Brooke distinguishes the case; and Judge Cabell alone, expresses any doubt of the correctness of M’Kenney v. Waller, and Alcock v. Hill. The case of Chichester v. Mason was decided by a divided Court, and therefore is not an authority.
    The case of Ashby v. Smith, 9 Leigh 164, was the case of an attachment levied, and the question as to the effect of a countermand of an execution did not arise, and was not and could not be decided. In delivering their opinions in that case, the Judges went at some length into the grounds upon which the interference of a creditor with his execution would release a surety. Judge Cabell expressed himself as dissatisfied with the decisions in M’Kenney v. Waller, and Alcock v. Hill. Brockenbrough, J. said that Chichester v. Mason shook the previous cases; but he does not say he was dissatisfied with them: And he could not have been, as he sustained these cases in Chichester v. Mason. In Ward v. Vass, 7 Leigh 135, the execution had been suspended with the consent of the surety ; and the wheat crop on which the levy was made, had been sold at private sale, and the proceeds applied in part satisfaction of the execution.
    But if the surety is entitled to relief, the question arises, to what extent shall he be relieved? If the execution had been levied, it would have brought only about 150 dollars, according to the testimony of Weaver. ' This is the extent of the injury the surety has sustained; and if the old rule is to be abandoned, this, upon any sound principle of justice and equity, is the utmost to which the relief should be extended. Such was the view of Tucker, P. in Ward v. Vass, supra ; and this is the principle of Norris v. Crummey. 2 Rand. 323.
    
      
      Robert E. Scott, for the appellee.
    It is admitted for the appellee, that the mere countermand of an execution by the plaintiff does not entitle the surety to relief. To entitle him to relief, he must be injured by the countermand; and the extent of his relief is to be measured by the amount of injury he has sustained.
    The testimony of Weaver is relied upon to shew that the property in the possession of Yerby, liable to the executions at the time when the plaintiff arrested the levy, was but about 150 dollars. His testimony refers to the previous year when ho was the deputy sheriff. We do not know how diligent he was in his search: and we know from himself that any further search for property by him, was unnecessary, as he found and sold enough to satisfy all the executions in his hands. But we are not left to conjecture on this subject. The debtor himself swears that when the fi. fas. were in the sheriff’s hands, he had property liable to be taken, enough to pay off the executions. He certainly had land which was afterwards sold. There were his crops, the increase of his stocks; or he may have acquired other property after Weaver had been satisfied. And the application of the debtor for indulgence shews there was property which might be taken.
    The case is, therefore, divested of all difficulty on this ground; and must be decided upon the question involved in M’Kenney v. Waller, and Alcock v. Hill. If these cases stand in the books as settling the law, I agree, that however much they outrage the true principles of equity law, it may be best to adhere to them. But this is not the fact. Ail the counsel in the State consider the question as an open question.
    In conceding this to be an open question, I concede much. 1 might contend with great force that the doctrine of these cases has been repudiated. In Ashby v. Smith, 9 Leigh 164, Brockenbrough, J. who concurred with Judge Carr in Chichester v. Mason, refers to that case as having shaken the cases of M’Kenney v. Waller, and Alcock v. Hill. Cabell, J. considers Chichester Mason as having repudiated the doctrine of these cases. Judge Tucker decided Chichester v. Mason; and in Ward v. Vass, he says, If the Court affirms Chichester v. Mason, it will overrule M’Kenney v. Waller, and Alcock v. Hill. Here then are Cabell and Brooke, J’s, who sat in these cases, and concurred in the decisions, and Tucker and Brockenbrough, all of whom agree in saying that these cases are overruled.
    It is true that in Chichester v. Mason, Cabell and Brooke refer to some facts as distinguishing that from the preceding cases; hut they do not rely on this ground; and in fact it could not be sustained. The main and true ground was that the previous cases were erroneously decided. In that case, Judge Carr says that the doctrine is founded on the doctrine of subrogation. This was the mistake made in M’Kenney v. Waller, where the Judges'rely on the cases of Norris v. Crummey, 2 Rand. 323; and Hunter v. Jett, 4 Id. 104. These cases have in fact, no application to the question.
    It is well settled that a mere indulgence granted to a principal debtor does not release a surety, where the creditor is left free to pursue his remedies; and Norris v. Crummey, and Hunter v. Jett, maintain that doctrine, and none other. If a creditor releases any security, to that extent the surety is released. If he ties his hands even for an hour, the surety is discharged. These are distinct grounds of relief; and the principles are wholly distinct, and rest upon different grounds. Norris v. Crummey and Hunter v. Jett brought up the question whether time had been given to the principal debtor; and the Court held, it was mere indulgence, and that the creditor’s hands had not been tied. When M’Kenney v. Waller came up, the Court held, upon the principle of these cases, that as the creditor’s hands had not been tied, the surety was not released : plainly mistaking the principle applicable to the case. And it is remarkable that the Judge who delivered the opinion of the Court in this case, had gone out of his way in Norris v. Crummey to state the doctrine in relation to the countermanding of an execution; and puts it on the same ground, whether the execution has been served or is in the sheriff’s hands, so as to create a lien upon the debtor’s property.
    I assume then that the cases of M'Kenney v. Waller, and Alcock v. Hill, if not overruled, have been shaken ; and that the question is now an open question. Let us then consider the question upon principle.
    There are three grounds of relief to a surety. First, Where a creditor gives time to the principal debtor, by binding his hands, even for an hour. Second, Where the creditor has another security, and releases it without the assent of the surety. Third, Where the creditor has the means in bis hands of discharging the debt out of the property of the principal debtor, and parts with it. In this case the surety is released, though the means in the hands of the creditor be such as he cannot transfer to the surety if he pays the debt. Such is the lien of an execution. We know if a surety pays, the judgment lien is kept alive in equity for his indemnity; but not so as to the lien of an execution. Carrs v. Glasscock, 3 Gratt. 343. A debtor may put property into the hands of his creditor for the purpose of paying the debt, which he could not turn over to the surety; yet if he voluntarily returned it to the debtor, the surety would be released. Commonwealth v. Miller's adm'rs, 8 Serg. & Rawle 452.
    It is apparent then that Judge Carr, in Chichester v. Mason, lays down the law too narrowly, when he puts the relief of the surety on the ground of subrogation. Nor should the relief be put upon the ground of fraud ; but because the act of the creditor has been injurious to the surety. The creditor should be considered, as Lord Eldon held in Mayhew v. Crickett, referred to in Chichester v. Mason, as trustee of his judgment and execution for the surety.
    In the case of Chichester v. Mason, Judge Carr says, that a fieri facias delivered to the sheriff is not a perfect, but only an inchoate lien; that it does not change the property; and that this is only done by the levy. In what respect is the lien of a fieri facias delivered, imperfect ? In what respect is it inchoate ? At common law the execution bound the goods in the hands of a bona fide purchaser for value from its date. The law treats it as binding the goods against the world. What more can any lien, a mortgage or a deed of trust, do ? Our statute and the English statute steps in to remedy an inconvenience, and says the execution shall only bind the goods from the time of its delivery to the sheriff. Then it binds all the goods whilst it runs.
    The only difference between a fi. fa. delivered, and a fi. fa. executed, is, that one is a general, and the other is a specific lien. The general may be more valuable than the specific lien. The last may be levied upon too little property to pay the debt. The value of either is in the capacity to sell: That is all in which the creditor is interested. If that capacity is defeated, the injury results; and whatever defeats that capacity, infli s the injury. The capacity to sell and the sale is the object; the levy is only one step in accomplishing the object ; and the distinction between an execution delivered and an execution levied, is only factitious.
    The Judge says, the execution delivered does not change the property. Does the levy change the property? The writ commands the sheriff to seize and sell. Whose goods does he seize ? The debtor’s. Whose does he sell ? The debtor’s. The sheriff sells under a power, and thus passes the title. But the property in the goods is not changed until the sale, when it passes to the purchaser under the law.
    The Judge says these things shew that the execution delivered is not a perfect lien. This is an error. It requires nothing to perfect the lien. To make it fruitful, the goods must be sold. But so must be a mortgage or trust subject. The property must be taken into possession and sold to make them fruitful.
    This question came up in Pegram v. May, 9 Leigh 176. There the plaintiff having gotten his judgment against principal and surety, put his execution into the hands of a sheriff who did not act in that part of the county in which the principal debtor lived, with instructions to hold the execution and not to levy unless the debtor brought his property to Petersburg. Whilst the execution was so-held, the debtor made a deed of trust to secure other creditors, and the trustee sold. The execution was then levied on the property, and it was sold : and the question was, which title was best ? And this Court held that the purchasers under the execution were entitled to the property. So too it was held in Lambert v. Paulding, 18 John. R. 311; Woodland v. Fuller, 39 Eng. C. L. R. 255. These cases shew the binding effect of a fi. fa. delivered to the sheriff. But the case of Savage v. Best, 3 How. Sup. Ct. R. 111, is a still stronger case. And by the decisions of the Kentucky Courts, as cited and approved by Taney, Ch. J., in that case, no greater efficacy is given to the fi. fa. by the levy: It is absolute by the delivery.
    Judge Story, 1 Equ. Jur. 322, says, If a creditor does any act injurious to the surety, or inconsistent with his rights, or omits to do any act it is his duty to do, the surety is released. The relief of the surety thus rests upon the ground of injury done to him. If the creditor does any act detrimental to the surety, he is released. Did not this creditor do an act in countermanding the execution, detrimental to the surety? If the creditor had remained passive, the surety would have been relieved from his liability, and the debt would have been satjsgef| out 0f jpg property of the principal debtor. Did the creditor remain passive ? Was he passive when he sued out executions and delivered them to the sheriff? Was he passive when he countermanded the executions ? In no sense can a creditor be held to be passive when he interferes to arrest an execution. He might have remained passive after he obtained his judgment ; but he did not. He sued out his executions and delivered them to the sheriff. He was then active; and he was active in arresting the executions, whereby he did an act detrimental to the surety. He had a right to interfere : No one objects to that. But he had no right to injure the surety. The principal debtor was there ; his property was bound for the debt; and by the interference of the creditor, he was again authorized to dispose of his property, and he did it.
    When again the creditor acted, he proceeded not against the surety in the forthcoming bond, (he was insolvent,) but against the original surety. This surety had two grounds of complaint. First, against the sheriff for taking insufficient security; the original execution having been levied upon the goods of the principal debtor. If this surety had paid the debt, he would have been entitled to go against the surety in the forthcoming bond; and if he was insufficient, against the sheriff. The creditor has disabled himself from turning over this surety and the liability of the sheriff to the original surety. He could turn over the bond, but the surety therein is insolvent. And can he turn over the liability of the sheriff? I apprehend he could not; and he could not because of his act in arresting these executions. The sheriff was prompted by his liability, to take out the ca. sas.; and the proofs shew that the money would have been made out of the principal. Then could this creditor maintain an action against the sheriff, when his own act prevented the making the money out of the principal debtor. Surely no more than nominal damages would be given against the sheriff by any jury, or be sustained by any Court. The doctrine that a surety in a forthcoming bond is liable to the original surety is clearly laid down, though not decided, in Langford v. Perrin, 5 Leigh 552; Douglass v. Fagg, 8 Id. 588; Givens v. Nelson, 10 Id. 382; Garland, v. Lynch, 1 Rob. R. 545; Leake v. Ferguson, 2 Gratt. 434; Preston v. Preston, 4 Graft. 88.
    What are the consequences of the doctrine contended for by the appellant’s counsel ? Suppose the creditor intended by the countermand of his execution to effect what has occurred; that his object was to withhold his execution that his friend who had no security for his debt, might levy upon the property. Would the surety be still bound ? This may be done without fraud; yet it is an act detrimental to the surety.
    Let us look to the nature of the act done by the creditor. The act was the causing the executions to be returned without being levied. Suppose the sheriff had done this, and the debt had been lost, would not the creditor have had a right to complain ? He might have sued on the sheriff’s bond because he was injured; and the measure of his relief would have been the amount of the debt. Or he might have proceeded against the surety; and if the surety paid the debt, he would be substituted to the creditor’s rights, and might maintain the action against the sheriff. If this be so when the sheriff does the act, why should it not be when the creditor does it ? The true principle in either case is the injury; and this is the same in both. The surety, of course, has only his remedy by injunction; and this is the relief that has been granted to him.
    
      
      Morson, in reply.
    In the opening argument for the appellant, the case was rested upon the authority of two decisions of this Court expressly upon the point, whilst there was no case against it, and upon the maxim stare decisis. The counsel on the other side insists that these cases have been overruled by Chichester v. Mason, 7 Leigh 244. That was a case by a divided Court; two of the Judges maintaining the doctrine of the older cases: a third attempting to distinguish that case from the others ; and only one Judge expressing dissatisfaction with the previous decisions. That case might have been decided by the whole Court as it was, in consistency with the previous cases. There was a material distinction between them. The countermand was not an act of forbearance towards the debtor, but causa lucri; and that usurious gain; and the case comes within the category of being a fraud upon the surety. The case, too, upon the well settled principles of this Court, is not authority.
    There is, then, no case which overrules M’Kenney v. Waller, and Alcock v. Hill; and therefore the maxim stare decisis still applies in full force.
    If this question is to be taken up as res integra, then much may be said in support of the cases of M’Kenney v. Waller, and Alcock v. Hill, on principles of philosophy and law. It is admitted by all the books, that mere forbearance by a creditor does not release the surety. Was the act of the creditor more than mere forbearance ? It is said on the other side, that the execution delivered is an absolute lien: And this is the vice of the argument. My idea of an absolute lien is, that the law regards nothing as such which requires some other act to be done to perfect it. Now no one can deny that unless the sheriff can find goods and levy upon them, no lien attaches; but after the return day of the execution, there is no lien upon the debtor’s property. Judge Carr was, therefore, right in saying it was an inchoate lien, and only to be perfected by levy. The lien then was not perfected, not by the doing of an. act, but by the forbearance to do another act which was indispensable to the perfection of the lien.
    It is said that the rule as to the creditor is the same as in the case of a sheriff who fails to levy an execution. The law as stated, so far as the sheriff is concerned, is very good law: but it does not apply to a creditor, because a creditor is empowered to forbear his proceedings, but the sheriff is a sworn officer, bound to proceed to levy the execution when put into his hands ; and when he fails to do his duty, he is liable to all persons injured. One has the control, and in morals and in law has a right to forbear. The other has no right to forbear; but violates his duty in so doing.
    Several cases have been cited where executions were levied, and between the delivery and the levy there was a conveyance of the property. These cases settle no new point. They only declare that an execution delivered, binds the property against such conveyances. It has not been contended that an execution delivered is no lien. But it is an inchoate and floating lien; and if it is not levied, it floats away when the return day arrives; and the property is entirely released.
    It is said by the counsel on the other side, that there are three modes by which a surety may be released. One is by giving time to the principal debtor. I have nothing to say of this mode : The law is well settled. The second is by releasing a specific lien. I have as little to say about this mode ; the law is also well settled. The third is, where the creditor does, or omits to do, any act which produces injury to the surety. I dissent from this proposition in the broad terms in which it is stated. It is partly correct and partly incorrect. If an act is done in bad faith, by which the surety is injured, he is discharged pro tanto. But if the act does not come within the first or second class, and is bona 
      
      fide, then it does not release the surety, though he was injured by the act. The law does not require any such course of proceeding by a creditor; and such a rule would be most mischievous. If this doctrine may be applied to the case before us, must it not be applied to the case of a creditor neglecting to docket his judgment ? And thus an act of forgetfulness, or even of ignorance, may release a surety.
    Good policy, wisdom and humanity require that the rules which apply to the treatment of a debtor by his creditor, shall not be too rigid. The earlier cases both here and in England, shew that scarcely in any case was the surety released, unless there had been some impropriety on the part of the creditor. Norris v. Crummey, and Hunter v. Jett, had been considered as settling the principles on which a surety would be released, so firmly, that when M’Kenney v. Waller, and Alcock v. Hill, were decided, no one supposed that such a proposition as that now contended for, would ever have been seriously advanced. The question then was, whether the creditor had, or had not, deprived himself of any of his remedies. If he had, the surety was released. If he had not, the surety was still bound.
    It is said that the act of the creditor in this case released the sheriff, who had made himself liable for taking insolvent security in the forthcoming bond. I know no case which authorizes the proposition. Probably where the act of the original surety injures the surety in the forthcoming bond, a Court of equity might refuse to interfere. But if the original surety had a right to go against the surety in the forthcoming bond, his remedy still exists.
    If the countermand of the execution by the creditor did not release the surety, it did not release the sheriff for taking insufficient security. If the surety was insufficient, this was the improper act of the sheriff when he took the security; and a mere countermand of the execution would not excuse or heal the violation of his duty. And whether there was a violation of duty by the sheriff, is to be tried as of the date when the surety was taken. If then the act of the creditor did not release the surety, certainly it did not release the sheriff.
   Baldwin, J.

It is perfectly well settled, and has been very properly conceded in the argument, that a surety is not absolved by the want of diligence on the part of the creditor in regard to his demand against the principal debtor. A defence on the ground of mere laches would, indeed, be inconsistent with the relation of the parties. The obligation of a surety is not conditional, but absolute. His undertaking to pay is not in the event of the inability or unwillingness of the principal, but at all events, and under all circumstances, as much so as if he were himself the sole debtor. Such is the form of his obligation, (unless specially qualified,) whether separate or joint, and such its true intent and meaning ; and it is founded upon a lawful and sufficient consideration, the credit given to the principal by his procurement. It is the duty of the surety, as well as the principal, to see to the payment of the money, and the forbearance of the creditor is a tacit indulgence given to both, in which, the acquiescence of the one is equally significant with that of the other.

Hence it is, that if the obligation be several, the creditor may pursue the surety only, that if it be merely joint, he may bring his action against the survivor, or the representative of the deceased, at his option, as if both were principals; that after a several judgment against the principal, he need not sue out execution thereupon, but may pursue and coerce payment from the surety; that upon a joint judgment against both, he may cause execution to be levied at his pleasure upon the person or property of either; that he may pursue the surety personally, notwithstanding a collateral surety given by him or his principal.

It follows that though a discharge of the debt, whether principal or surety, is available for either, yet that the surety can have no peculiar equity against the creditor to be absolved from his obligation, arising directly from the mere relation between them; but that such equity must be derived from the equities of the surety against his principal, and the infringement thereof by the conduct of the creditor. If the remedies or the rights of the surety against his principal be destroyed or defeated by the creditor, that furnishes a plain equity on the part of the surety against the further pursuit of the creditor; which is either absolute, or to the extent of the injury he has sustained.

The remedies of the surety against his principal are, 1. To pay the debt, and recover the same back from the principal, which he may do by action, or in most cases after judgment or execution against him, by the summary statutory proceeding by motion. 2. If he is apprehensive of suffering by reason of the forbearance of the creditor, he may file his bill in chancery against the principal to compel him to make payment himself to the creditor. 3. Though, independently of statutory provision, the surety is not absolved from his obligation, by the refusal of the creditor to sue the principal, after having been requested by the surety to do so, yet the latter may, by his bill in equity, invoke the authority of that forum to compel the creditor to bring his action against the principal, upon being indemnified against the consequences of risk, delay and expense; it being reasonable that such an act of benevolence should be extended to the surety, when it can be done without prejudice to the creditor. This exercise of equitable jurisdiction, though in form against the creditor, is substantially a remedy for the surety against his principal; the proceeding at law, though conducted by the creditor, being in truth for the benefit of the surety. 4. A statutory remedy is provided in certain cases, for the procurement by the surety of an action against his principal; authority being given to sureties in bonds, bills or notes for the payment of money, to require, by a written notice to the creditor, that he shall bring suit thereupon, and proceed with due diligence to recover the money, on pain of incurring, in case of his failure to do so, the exoneration of the surety. 1 Rev. Code, ch. 116, § 6, p. 461.

Now, as the engagement of the surety is only coextensive with that of his principal, and his equities against him arise altogether out of non-performance of the latter, it follows that the creditor has no right to alter the terms of his contract with the principal, to the prejudice of the surety, without his consent. If, therefore, the creditor, without such consent, makes an obligatory agreement with the principal, by which time for payment is extended to him, so as to tie the hands of the creditor from proceeding in the interval to enforce the original contract, the consequence is, that the remedies of the surety against his principal are for the same period suspended, so as to expose him to a hazard of loss not contemplated by his undertaking: and this is enough to absolve him from his obligation, without enquiry into the question of actual loss.

And as regards the rights of the surety against his principal, he is plainly entitled to expect., not only that the principal shall save him from harm, by exempting him from payment of the debt, or if that has not been done, by reimbursing him when he has paid it; but, moreover, that the principal shall allow him the benefit of the means of payment, which the latter has placed in the hands or within the power of the creditor. The surety has therefore a right to enforce against his principal all securities which the latter has given to the creditor, whether when the debt was contracted or subsequently; for the purpose of reimbursement to the surety, if payment has been made by him, or without, for the purpose of causing actual payment to be made: and it is not in the mouth of the creditor to object in the one case, or the other, to the surety’s standing precisely in his shoes. On the contrary, the creditor, in relation to such securities, may be said, with truth, to be the trustee of the surety, and if he acts unfaithfully, he not only fails in his duty as such, but violates the rights of the surety as against his principal. If, therefore, he releases, or perverts, or defeats such securities, he exempts the surety to the extent of the loss thereby occasioned.

A fi. fa. levied at the suit of the creditor, upon goods of the debtor, is unquestionably a security for the debt, it is a direct appropriation by authority of law, of specific property of the debtor, for the purpose of satisfying the demand. The lien thereby created, is substantial and enduring, as much so as a mortgage or a pledge ; and can be defeated only by the act of the creditor; for unless he interposes and releases or restores the goods, the money, to the value of the levy, will inevitably be made either out of the goods or out of the sheriff. It has even been held, that the release or restoration of the goods by the creditor, operates at law as a discharge of the judgment, at least without the agreement of the debtor express or implied to the contrary; and when the surety is also a party to the judgment, he cannot, without his own consent, be affected by such agreement of the principal, and is discharged both at law and in equity; and when he is not a party to the judgment, though he is not discharged at law, he is in equity, to the extent of the value of the goods.

But the delivery of the fi. fa. to the sheriff is no security for the debt. It is only a step in the prosecution of the demand by legal process, as is equally true of the institution of the suit, the recovery of the judgment, and the issuing of the execution. And as the creditor owes to the surety no duty of active diligence, he may omit to bring suit, or dismiss it after it is brought; or after recovery of judgment, he may decline suing out execution, or to place it in the hands of the sheriff, or to cause it to be levied, or he may direct it to be levied only in a certain event. And why may he not recall or suspend the execution before it has been levied ? In what respect does that differ substantially from any other negligent, or injudicious, or indulgent prosecution of his demand ?

The delivery of the execution to the sheriff is not, properly speaking, a lien upon the goods of the debtor: It is the levy which makes the lien; that, it is true, has relation, to some extent, (i. e. as against mesne purchasers, but not as against other execution creditors,) to the delivery to the sheriff, but in like manner, and to the like effect, and upon the same policy that a judgment lien on lands has relation to the first day of the term. There can be no relation of a judgment lien without a judgment, and so there can be no relation of a levy lien without a levy.

If the creditor, by recalling or suspending an execution against the principal debtor, which has come to the hands of the sheriff, violates the rights of the surety, it cannot be because he thereby releases a security for the debt which he had obtained from the principal; but because he has failed to obtain such a security by a due course of proceeding; and that would be to require of him an active and judicious diligence in the prosecution of his demand. And such required diligence would on the other hand encourage supineness and negligence on the part of the surety, who instead of performing his duty of paying the debt, or causing it to be paid by his principal, would be tempted to lie in wait for some slip or indiscretion on the part of the creditor, and even to stimulate his principal to solicit from the creditor an imprudent indulgence. Such a principle would in effeet destroy the discretion and impair the rights of the creditor. He would be obliged to disregard all the dictates of humanity in the pursuit of his debtor ; he could not venture to exercise his judgment in the management of his process, though a timely indulgence might accomplish what would be beyond the reach of a rigorous prosecution. It is a common practice for the clerks of Courts to issue executions on judgments, and for the sheriffs to take them out of the office, without waiting for the directions of the plaintiff or his attorney, and it may sometimes happen, contrary to the desire of the creditor. Is he to be thereby debarred from recalling or suspending the process. The law authorizes the plaintiff, though execution has come to the hands of the sheriff, to sue out other and different process of execution. Is he to exercise this privilege at the hazard of losing his debt by the supposed destruction thereby of a supposed contingent, uncertain, precarious and fleeting lien? Suppose the creditor has reason to believe that the goods in possession of the debtor are encumbered or subject to a paramount title, is he to act at his peril, in instructing the sheriff not to take them in execution ?

I am for adhering to the decisions of this Court in M’Kenney v. Waller, 1 Leigh 434, and Alcock v. Hill, 4 Leigh 622; which have not been shaken by any subsequent adjudication; and which establish a principle that furnishes a safe and certain guide. To overrule them would give rise to much litigation; and the present case is a strong illustration of the evil. Here a surety, though cut off from no remedy, is seeking to be discharged from his obligation, by speculative opinions of witnesses as to the probability that the principal had property sufficient to discharge the debt in part, if the fi. fa. had been levied, without any specification or description of the property, or any information in regard to the validity of the title.

I think the decree of the Circuit court ought to be reversed, the injunction dissolved and the bill dismissed.

The other Judges concurred in the opinion of Baldwin, J.

Decree reversed and bill dismissed.  