
    Joseph Caruthers vs. Jacob Dean et al.
    Mere passiveness of the creditor as to the principal, will not impair his rights as to the surety ; to affect the latter, requires the active interference of the creditor to the prejudice of the surety.
    A decree of the chancery court, therefore, dissolving an injunction obtained by a surety against an execution on a judgment against the principal and himself, on the ground that the plaintiff in the judgment had not used proper diligence in making the amount of the judgment out of the principal, who, after the judgment was obtained, had property amenable to the process of the court sufficient to satisfy the debt; was held to be correct, especially as the plaintiff in the judgment had issued his executions regularly against both defendants, until a return of nulla Iona was made as to the principal, and an affidavit was duly filed, that the principal had no property, &c.
    Appeal from the vice-chancery court at Hollis Springs; Hon. Henry Dickinson, vice-chancellor.
    Joseph Caruthers in his bill charges, in substance, that complainant was one A. H. Roach’s security on a note for $300 to W. H. Bayless, which was assigned to T. J. Oliver by Bayless, by Oliver to J. Dean, who obtained judgment against Roach and complainant on the 12th of March, 1842, for $306 debt, $17'93f costs; execution issued 11th of April, 1842. Complainant, on the 10th of Aug. 1842, filed his affidavit of his being a surety. That execution issued on the 9th of April, 1844, and those executions were returned, as to Roach, nulla bona, and that the plaintiff had filed his affidavit of Roach’s insolvency according to the statute ; that on the 18th of Feb., 1846, an execution was issued, and on the 23d of February, 1846, was levied on section twenty-nine of township three, range four, west, belonging to complainant; the levy was made at Jesse E. Maxwell and Francis Shoemake’s request, who claimed a beneficial interest in the judgment; that since the date of the judgment Roach has had sufficient property to pay it, and had property in 1844 and 1845, cotton, and stock, &.C., subsequent to the judgment; that Dean and confederates, with diligence, could have made the debt; that he filed his affidavit as security, as well to protect him, as to compel plaintiff in execution, and those interested, to make the debt out of Roach; that complainant informed some of the parties interested, that the debt could be made out of Roach, and requested them to do so, at the same time stating how it could be made; that Dean and others permitted the judgment to lie dormant from the 17th of April, 1842, to the 9th of April, 1844, and from then until the 18th of February, 1846, permitting Roach, by their laches in not issuing and having levied executions, to make and use more than would pay the judgment; that in 1844 and 1845 a great portion, if not all, of the judgment could have been made out of Roach, the principal, by diligence of plaintiff with proper directions ; that complainant informed Maxwell, that Roach’s cotton was liable, and urged him to levy upon it, and was willing, if the debt was not made by that course, to pay any balance after testing Roach’s ability to pay the debt; that complainant offered to place indemnity in the hands of the parties interested in the judgment, if they would use it to secure complainant as against Roach, or permit him to use it, and they refused indemnity, or to do any act for complainant’s benefit, or to permit him to direct the execution, so as to secure himself out of Roach; that if he had been permitted to control the judgment and execution, the same could have been made out of Roach long since; that by the act of the last legislature, known as the woman’s law, and Dean’s laches, and that of others interested in the judgment, complainant had been entirely deprived of every power to secure himself out of Roach, and to pay the judgment would be his total loss, produced chiefly, if not entirely, by Dean and his confederates.
    The bill was sworn to, and an injunction was granted against a sale under the execution and levy.
    J. E. Maxwell, one of the defendants, after stating his interest in the judgment, answered, admitting the allegations of the bill, as to the history of the judgment and executions, and the fact of complainant being surety, and states their anxiety to have the judgment paid by Roach, and that they never gave Roach indulgence, and it was not their fault that the debt had not been made out of him. He denies that Roach, within the knowledge of defendants, has had property out of which the judgment could have been made, but admits complainant in February, 1846, said he thought money could be made out of Roach. That they have, at all times, been ready to carry out complainant’s suggestions to collect the judgment out of Roach, when satisfied any thing could be made.
    Shoemake answered also to the same effect with Maxwell.
    Affidavits, sustaining the statements in the bill, as to property in 1844 and 1845, in the possession of Roach, were filed, and Roach’s answer averred the same fact.
    
      The vice-chancellor dissolved the injunction as to the defendants, who had answered the bill to the extent of their interest in the judgment, and Caruthers appealed.
    
      T. J. Word, for appellant.
    Upon the principle of equity laid down in 1 Story’s Eq. Jur. 330, § 325, that acts of a creditor injurious to the surety, or inconsistent with his rights, &c., may he set up by surety as a defence in equity, the question is left with the court, under the facts stated in bill, answer and affidavits, to determine how far the acts of defendants and Oliver go to complainant’s injury. That Roach had property in 1844 and 1845, is proved and is not denied.
    
      Watson, for appellees.
    The bill upon its face does not state a case entitling the complainant to relief. See 7 How. 103; 6 S. & M. 24; 3 lb. 647; 4 lb. 165 ; CreatWs Administrator v. Sims, 5 How. S. C. U. S. R. 192; 4 How. Miss. R. 684.
    Complainant is not entitled to relief on yet another ground. The judgment is a joint one against principal and surety, and after judgment against principal and surety, that relation as to the creditor ceases. 10 Yerg. R. Ill, 113, 114; 5 John Ch. R. 305; 3 Wheat. 520; 5 How. S. C. U. S. R. 192.
   Mr. Justice Thacher

delivered the opinion of the court.

This is an appeal by Caruthers from the decree of the vice-chancellor of vice-chancery court for the northern district, dissolving an injunction against an execution at law.

Caruthers filed his bill, charging that he was a mere surety upon the promissory note upon which the judgment at law had been obtained, and that proper diligence and exertion had not been made to levy the debt from the principal in the promissory note. It appears from the bill, answers and proof, that it was probably the fact, that the principal had been in the possession of property sufficient to respond to the judgment; but it likewise appears the execution enjoined was not issued until two executions against the principal had been returned unsatisfied, and an affidavit made that the principal had not property to satisfy the debt.

The principle upon which relief is given to a surety, is the active interference of a creditor as to the principal, by which the surety is prejudiced. 2 Dev. & Bat. Eq. R. 91; 1 Eng. Con. Ch. R. 543. The mere passiveness of the creditor, as to the principal, will not impair his rights against a surety. We have held that delay in issuing execution upon a judgment upon a forthcoming bond, will not discharge the surety in the judgment on the bond. Melton v. Howard, 7 How. 103. Butin the pi'esent case, the ordinary course of the law, so far from having been impeded, seems to have been facilitated by the issuance of an alias execution against the principal, and nothing is shown exhibiting any interference by the creditor in the attempt to make the debt out of the principal. Hence it is not a case where an injunction would be warranted. All the other objections to the decree could have been obviated by the appellant in the chancery court, and are therefore not available here, especially as the gravamen of the bill does not show a case for equitable relief.

Decree affirmed.  