
    
      COX vs. MULHOLLAN.
    
    The surety on an appeal bond is not relieved by the appellee obtaining a mortgage, reviving his judgment against the appellant's heirs, &c.
    Appeal from the court of the sixth district.
   Martin, J.

delivered the opinion of the court. The plaintiff states that he obtained a judgment against John M. Martin, now deceased; that present defendant became surety for the appeal, which was not prosecuted; and that the judgment remains unsatisfied—wherefore he prayed judgment against the present defendant.

He pleaded the general issue, and that the plaintiff received a mortgage for his said debt, on a tract of land, which has since been sold as part of Martin's estate, for the common benefit of all his creditors, and particularly for that of the plaintiff to the amount of his mortgage, brought a larger sum plaintiff’s debt; that the plaintiff has revived his judgment against Martin’s heirs.

West’n District

Sept. 1823.

There was judgment for the plaintiff and the defendant appealed.

The plaintiff introduced in evidence the record of the original suit against Martin, the appeal bond, and the certificate of the clerk of the supreme court, that the appeal was not prosecuted.

The defendant introduced the mortgage alluded to in the answer; the classification of the debts of Martin’s estate by the court of probates; the process verbal of the sale of the property of the estate; the record of the suit of Cox vs. Martin’s heirs.

The plaintiff has fully established his case, and the liability of the defendant. It is not contended that he has received payment, and that alone could extinguish his claim. Neither the mortgage nor the revival of the judgment against the heirs of the principal debtor can have this effect. The mortgage and the revival of judgment against the heirs, add to the security of the creditor, they do not diminish, in the least, the liability of the debtor. This case is hardly to be distinguished from that of Baldwin vs. Gordon’s heirs, determined in this court in September last—12 Martin, 378. If the plaintiff has gained any advantage by the mortgage, revival of the suit, or the sale of the mortgaged premises, the defendant after paying, will consider whether he be entitled to a subrogation.

Johnston for the plaintiff, Thomas for the defendant.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  