
    The Commonwealth for the use of Bellas against Vanderslice and another administrators of Miller.
    of several j oii'it defendants •dies, )us personal property is discharged tinn- but°the mainTaRen’ upon his land; and it seems that the proper mode of rendering the judgment effective in Pennsylvania, is, to issue a scire facias against the survivors, and the executors or administrators of him who is dead ; and though the terre-tenant is not made a party on the record, he may come in on notice, and defend pro interesse suo.
    
    In Pennsylvania, interest is incident to all judgments.
    Where the creditor has the means of satisfaction in his hands, and does not choose to retain if, but suffers it to pass into the bands of the principal, the surety is discharged. And the distinction between principal and surety is not destroyed, by obtaining judgment on tile original security.
    In teres tie to be calculated on a judgment, to the. time when the first payment is made on account, which is to be applied, in the first instance, to discharge the interest, and afterwards, if there be a surplus, to sink the principal, and so toties quoties; care being taken, that the principal, at any time thus reduced, be not suffered to accumulate by the accruing interest.
    In Error.
    WRIT of error to the Court of Common Pleas of Northumberland., on a scire facias against the administrators of . . . J ° Christian Miller.
    From the evidence given in the Court' below, as exhibited the recorch ^ appeared, that to January Term, 1814, an action was commenced in the name of the Commonwealth, for the use of Hugh Bellas, esq. against Daniel Lebo, Sheriff of Northumberland county, Christian Miller, the intestate of the present defendants m error, and several other persons, who, together with Miller,.were the sureties of the Sheriff, in his official bond, on which the suit was brought, fot not paying over to Mr. Bellas, certain fees received by the Sheriff, to which he was entitled. The cause was arbitrated, and the arbitrators made a report, finding for the plaintiff the sum of sixteen hundred and seventy dollars fifty-eight and a half cents. Various executions were issued in the course of several successive' years, against all the defendants, on which the Sheriff was urged, without effect, to sell the personal property of Lebo, who, however, paid from time to time’ several sums on account. On the 13th January, 1818, Mr. Bellas and Lebo, without the consent of Leb'o’s sureties, entered into an arrangement, by which among other things, it was agreed, that the venditioni exponas, then in the Sheriff’s hands, under which he had been directed to sell Lebo’s personal property, should be staid ; “ that an alias fieri facias should issue, returnable to January Term, 1818, to which a return should be made of a levy upon Lebo’s real estate at Sunbury, which should be considered as condemned by an inquest at January Term aforesaid ; that the plaintiff should be at liberty to issue a venditioni exponas for the sale of the said real estate, returnable to April Term, 1818, or any subsequent Term ; and that the said aliasfieri facias should issue for the balance of the debt, deducting the costs out of the partial payments, and deducting the balance of the payments from the interest as it accrued, and then from the debt, if there should be any surplus, towards the reduction of the debt.” About a year after this-agreement was entered into, íebo’s personal property was sold under an execution in another case, and the proceeds of the sale appropriated to the satisfaction of that execution. Christian Miller, one of Sheriff Lebo’s sureties, having died, this scire facias was issued, calling upon his administrators to shew cause why they should not be substituted in his place as parties, and also why execution should not issue on the, judgment.
    At the conclusion of the trial, the plaintiff requested the Court to charge the jury on the following points -
    
      1. That the plaintiff is entitled tp the amount of thejudgment5 with legal interest, according to the agreement of 13th January, 1818, deducting the payments which have been made, and the balance, if any, of monies received since the judgmpnt.
    I'o this point the Court answered, that the jury were to judge from the evidence, whether any money was due to the plaintiff, and if any, what sum.
    2. That the agreement of 13th January, 1818, the relinquishment of Lebo's personal property, and the Sheriff’s returns to the executions given in evidence, did not discharge the estate of Miller from any part of the debt.
    The answer of the Court was, that the plaintiff, having taken the property of Lebo in execution, and afterwards returned it to him, against the consent of his sureties, had discharged the sureties to the amount of the property taken in execution.
    3. That the plaintiff is entitled to recover the amount exhibited by his calculation, (a statement of which accompanied the record) provided the jury think the data or facts on which the calculation is founded, are supported by the evidence.
    The Court* said, that this was a matter for the jury to judge of, from the data and the correctness of the calculation.
    A verdict having been found for the plaintiff for four hundred and twenty dollars, ninety-eight cents only, he removed the cause to this Court by writ of error.
    Fricke, Bradford and Bellas, for the plaintiff in error,
    complained that the Court of Common Pleas gave no answer to the first and third points submitted to them, involving the questions, whether the judgment in the original suit bore interest, and the manner in which it was to be calculated. Act of 1700, Sm. L. 7.
    
    They further insisted, that in instructing the jury on the principal point, whether the Sheriff’s sureties were exonerated by the plaintiff’s acts, the Court had injured the plaintiff by stating, without any evidence to support the assertion, that the discharge of Lebd’s personal property was against the consent of the sureties. But waiving this circumstance, the Judge was wrong in point of law. The sureties are bound according to the nature of the bond, by which, in this instance, they are equally responsible with the principal, and when a judgment is obtained upon it, the plaintiff may at his pleasure levy upon the property of either. 4 Dall. 97. (notes.) 2 Serg. & Rawle, 22. A release under seal, given to one co-obligor, it is true, discharges the other ; but if it does not possess this strict technical character, it has no such operation. Therefore, where two are bound jointly and severally, a receipt in full to one on his payment of half, or a covenant not to sue one, does not discharge the other. Rowley v. Stoddard, 7 Johns. 207. Harrison v. Close, 2 Johns. 448. Nor is the refusal Of a creditor to sue the principal, on being requested by the surety, a discharge to the surety, though the principal proves insolvent. 2 Johns. Chan. Rep. 554. Dehuff v. Turbett, 3 Yeates, 157. The agreement between the plaintiff and Lebo, was not only not a release under seal, but it relinquished no part of the debt, and merely substituted a levy on the real, for that which had been made on the personal estate. From the levy on the personal property, no satisfactionh-esulted. It was relinquished at the request of the defendant, and was therefore as if it had never been made. If the goods of the principal are taken in execution by the Sheriff, but not sold, nor satisfaction received, the surety cannot, in an action against him, plead the levy in discharge of his own responsibility. 2 Shower, 394. 2 Tid. Prac. 937. Cro. Jac. 300. 2d Ld. Raym. 1072. 2 Bac. Abr. 725. 8 Johns. 209. 339. But whatever distinctions might bavk existed in favour of the surety, as the parties to the bond were respectively bound, these distinctions were lost when the bond' was merged in the judgment, which placed all upon the same footing.
    
      Greenough and Hepburn, for the defendants in error,
    with respect to the first point said, that they did not contend that a judgment did not carry interest, but that it was uncertain at what time the plaintiff had received certain sums belonging to Lebo, consisting of Sheriff’s costs, which were to be deducted from the amount of his own claim, and therefore it would be impossible to. know how to calculate the interest. If it was the plaintiff’s object to obtain the Court’s opinion, whether the judgment bore interest, the question was proposed in such a manner, as was not calculated to produce the answer he wished.
    rebnquishment of the levy on Lebo’s personal pro-petty, they argued, was a discharge of the sureties pro tanto. Property sufficient to satisfy a part of the debt, was in the plaintiff’s power, which by his own voluntary act he abandoned, in consequence of which, the property was swept away by anothercreditor, and he lost an opportunity of being paid. If the goods of the defendant to the amount of the debt are levied upon, the defendant is discharged from the judgment, and all further execution, although the Sheriff does not satisfy the plaintiff, 2 Sound. 47. (note 1.); still less can the defendant’s surety be charged in execution, where a levy has been made, which the creditor does not think proper to avail himself of. Even where the relation of principal and surety does not exist, the discharge of one, where two are jointly bound, is the discharge of the other. As if there be a joint capias ad satisfaciendum against two, and one is discharged, the other cannot be taken. 2 Bac. Ab. 719. The principle on which the defendants in error rely, is well set-tied in equity. If time be given to the principal, without the consent of the surety, the latter is no longer answerable. United States v. Hillegas’s Exrs. Wharton’s Dig. 272. If a fund belonging’to the principal, be in the hands of the,creditor, and he relinquishes it-, which is precisely this case, the surety is exonerated pro tanto. 4 Ves.jr. 829. 1 Madd. Ch. 190, 191. 10 Johns. 587. 2 Caines’ Cas. in Err. 1. The distinction attempted to be set up between the responsibility of the surety before and after the judgment, has the merit cf novelty, but nothing more. It is not to be found in any of the books, and is unsupported by reason. The judgment follows the nature of the bond on which it is founded. It is a joint jddgment against the principal and his sureties, who are protected against the acts of the creditor to their prejudice, exactly to the same extent that they were before judgment.
   The opinion of the Court was delivered by

Gibson J. —

It is impossible to support the judgment o& this writ, which is a scire facias to revive a judgment against the administrator of a joint defendant, who died first; for it is clear law that a plaintiff who has recovered against a number. can have execution only against the survivors, the goods of .those who have died being dischatged. But although the judgment is to be executed against the persons or chattels oniy of the. survivors, it is otherwise as to the land : that continues bound by the lien ; which under the Stat. Westm. 2d is rendered effective by a s'cire jaciás, against the survivors and the heirs and terre-tenants of those who have died, to shew cause why the plaintiff should not have execution of the lands of the original parties. The English mode of proceeding on this Statute, is pointed out by Sergeant Williams in a note to Trethewy v. Ackland et al. 2 Saund. 51, a. According to our practice, as lands are assets for the payment of debts, so far as to be subject to sale on a judgment against the personal representative, it seems the executor or administrator is substituted for the heir, .and the terre-tenant is not formally made a party on the record, but permitted to come in on notice, and defend pro interesse suo.

But as the questions made below, might again be agitated in a pioceeding against the survivors, or against the land, it is proper to decide them.

It is scarcely necessary, however, to decide that the original judgment, although rendered for fees collected by Lebo on executions in his hands, bore interest: by our Act of Assembly, interest is an incident of every judgment.

The judgment was against Lebo, and the sureties in his official bond. A fieri facias was issued, on which Lebo's personal property was levied; and on this., six successive writs of venditioni exponas were issued and returned; on-the last of which, the plaintiff and Lebo, without consulting the sureties or obtaining their assent, came to. an agreement that the writ should be stayed ; that an alias fieri facias should be issued and levied on Lebo's real property, which was to be considered as having been condemned ; and that the plaintiff should be at liberty to sell it at the succeeding term. By this arrangement, Lebo’s personal property was effectually released ; as it was left in, his possession, and, it seems, after-wards disposed of'by him., It is unnecessary to recapitulate the learning on the subject: the whole matter lies in a very narrow compass. Under the subsequent arrangement, the levy was neither at law nor in equity satisfaction, as regards Lebo, the principal. But there is no clearer rule, in equity, than that where the creditor has the means of satisfaction in jjjs jjancjs and chooses not to retain it, but suffers it to ¡iass into the hands of the principal, the surety can never be called Tr , ^ , , , on. Here there was a levy on personal property belonging to principal, and that was satisfaction pro tanto, as regards the sureties ; of the benefit of which nothing could deprive them, except an assent, on their part, to the arrangement by which the property was released. That, however, is not pretended. But it is said the distinction between principal and sürety ceases after judgment has been obtained on the original security, and that as to subsequent transactions, equity views them with equal favour. If that be so, I am ignorant of any authority that bears it out; and on the ground of reason, it certainly cannot be supported. The distinction is carried throughout.

At the trial, the plaintiff exhibited a statement of the amount claimed to be due, allowing credit for a number of partial payments ; and then prayed the direction of the Court, that the principle on which the calculation was made, was legal and proper ; but the request was submitted in terms so obscure, as to render the object difficult of comprehension; and the Court, perhaps not understanding exactly what was meant, refused to give any direction at all. As explained, here, however, it is clear that the principle of the calculation was the true one. Interest is always calculated on a judgment to the time of the first payment, which is applied in the first instance to discharge the interest, and afterwards, if there be a surplus, to sink the principal, and so, toties quoties, care being taken that the principal, at any time thus reduced, be not suffered to accumulate by the accruing interest. This is sustained not only by usage, but by decision ; and although it will not effect complete justice, it will approach it more nearly than the method sometimes used by merchants, of deducting partial payments, together with interest, from their respective dates, fi«m the principal and interest of the debt; for by the latter, the principal may in process of time be discharged, without pay in w a farthing beyond the interest — » as may easily be demonstrated.

Judgment reversed.  