
    Bank of Chillicothe v. Thomas L. Pierce.
    Previous to 1822, security in an appeal bond, on appeal from the common pleas to the Supreme Court, became absolutely charged, by judgment in the Supreme .Court against the appellant. Suing out and levying an execution upon such judgment, where nothing was made, did not discharge the liability of the security, the plaintiff having done nothing to prejudice such levy.
    This cause was adjourned from Muskingum county. It was debt upon a bond, and came before the court on an agreed state of facts.
    The defendant, with John Matthews, deceased, became security for E. Granger, also since deceased, in an appeal bond, dated August 2, 1819. In the Supreme Court judgment was rendered against Granger, and execution issued and levied upon a tract of land as the property of Granger. The return was “ not sold for want of bidders.” The levy produced nothing, in consequence of subsequent events over which the plaintiff could have no control. The question raised was as to the continued liability of Pierce.
    *Swan, for plaintiff.
    Stillwell, for defendant.
   Judge Lane

delivered the opinion of the court:

In 1819, when this bond was executed, under the law then in force, the security upon an appeal became bound absolutely for the amount of the debt, upon judgment against the appellant in the Supreme Court. Such was. the law when the judgment against ' Granger was finally rendered. To charge Pierce, it was not then necessary to sue execution against Granger. This being the case, Pierce is not released by the fact of suing and levying the execu-; tion, out of which, without fault of the plaintiff, nothing was made. No other ground of discharge is set up. This being held insufficient, judgment must be for the plaintiff.  