
    *Peter Baird v. Edward Rice.
    [Saturday, October 14, 1797.]
    (1 Am. Dec. 447.)
    Surety — Discharge of. — [A. recovered judgment against B. and C. his surety: A. issued execution thereon, which was levied on the property of B. The plaintiff, A. on receiving part of the money, gave B. farther time for the balance, and ordered the officer to restore the goods to B. Held, that by this procedure, the judgment was discharged at law, and C. the surety, not having assented to, or acquiesced in the agreement, was discharged in equity; in which he was protected against a second execution, by an injunction.]
    Rice filed a bill in Chance^' in the Borough Court of Norfolk, stating that he was security for one William Black in a bond to Baird. ' That Baird obtained a judgment thereon against the obligors in the Borough Court, and issued an execution; upon which property' belonging to Black was taken and duly advertised by the Sheriff; that Baird attended upon the day of sale; and having received a payment of part of the judgment, directed the Sheriff to restore the property to Black; who afterwards absconded with all his effects. That Baird had since issued execution against Rice for the balance of the judgment; and, therefore, the bill prayed an injunction. The answer stated, that upon the day of sale, a bond of indemnity was demanded by the Sheriff in consequence of the sale having been forbid under some incumbrance, which neither Rice nor Baird would give. That Black offered to pay 1501. if his property was released; which proposition Mathew urged Rice and Baird both to accede to. That Rice declared he was perfectly satisfied with whatever should be recommended by Mathews: and thereupon Baird accepted the 1501. That so far from Rice’s appearing to consider himself 19 ‘^exonerated from the debt, he after-wards solicited the loan of 2201. of Baird and one Westmore, which they consented to lend, provided he would give them good security for that sum -as well as for whatever he might be previously indebted in to Westmore, and for the balance which he still owed Baird on the judgment. That Rice agreed thereto and offered them a deed of trust on his Hackwood estate; but this negociation afterwards breaking off, Baird, issued the execution which is sought to be injoined.
    It appeared by the evidence that a deed of trust had been given on the property to secure a debt due to Marvault, and to indemnify Rice against his suretyship aforesaid ; which was proved in the District Court of Suffolk by two witnesses, and ordered to be recorded. That the sale was forbid in respect of Marvault’s interest, but Rice insisted on its taking place and offered to release his interest in the property: that the Sheriff demanded an indemnity, which neither Baird or Rice offered to give. That Baird upon receiving payment of the above-mentioned 1501. and Blacks’ promising to have the property sold within four months under the said deed of trust, directed the Sheriff to restore the property to Black; which he accordingly did. That an attorney was sent for to draw the mortgage on the Hackwood estate, but the treaty broke off and none was executed. That at this time Baird offered to advance a sum of money to Rice if he would secure the debt due from Black. That Baird stated an account against Rice, in which he charged the balance of Black’s judgment; and that the same was shewn to Rice, during the period of negociation for the mortgage. Upon the final hearing of the cause, the Borough Court dissolved the injunction and dismissed the bill with costs. Erom which decree Rice appealed to the Court of Chancery, where the decree of the Borough Court was reversed, and the injunction made perpetual. Rrorn which decree Baird appealed to this Court.
    Call, for the appellant.
    The question is, whether *the several acts of Baird upon the day of sale, exonerated Rice from his surety-ship? He could only be released by express agreement; the mere circumstance of Baird’s having given time was not sufficient. Dingwall v. Dunster, Dougl. 235. Where the delay was greater and the circumstances stronger than in the present case: but it was decided, that nothing but an express declaration by the holder of the bill, would discharge the acceptor. The principle of which case is the same with that before the Court: for the acceptor there was in fact only a security.
    Besides, there are circumstances in the present case to justify the delay; for, an incumbrance was suggested, and the Sheriff demanded an indemnity which Baird was not bound to give. Because he was not obliged to run any risque, or encounter the consequences of an act, which might bring him into difficulties; but it was the proper business of the security to see that the debt was paid. [Bishop v. Church,] 2 Ves. sen. 103, 372. If Rice wished diligence and activity to be used, he ought to have paid the money and taken an assignment of the judgment; after which he might have proceeded to sell or not as he thought proper. All this he could readily have done, as he was upon the spot and knew of the difficulties. If he failed to do so then, it was his own fault; and the laches was upon his side and not on ours. But he had the property incumbered for the very purpose of securing this debt; and therefore might have proceeded to sell under the deed of trust, as he was opposed by no creditor. His insisting on the sale was unimportant; for it was forbid by others, and the Sheriff demanded an indemnity which, as before observed, Baird was under no obligation to give.
    If Rice is entitled to relief at all, it must be on the ground that his situation was altered. But it clearly was not; as he was present at the sale, knew what was going on, was possessed of a deed of trust for the property, and had it as amply in his power to secure' himself afterwards as be-21 fore. He *cannot, therefore, with any propriety insist that the conduct of Baird lulled him into security; for he was fully apprised that the debt was not paid, and that there was no positive agreement for his exoneration.
    Wickham, contra.
    This was a joint judgment and execution, upon which the Sheriff took property which was afterwards released by order of Baird, who thereby exonerated Rice. For, if the Sheriff had returned the truth of the case, no new execution could have issued at common law; and although by the statute, a party may have several executions, yet a satisfaction of the first discharges the judgment; and the taking of a second is at the peril of the plaintiff. Indeed if the proper return had been made, Baird could not even under the statute have taken a second execution ; because the first would have appeared upon record to be discharged. Now the omission of the officer to make the return will not alter the nature of the case, especially in equity, which always considers that as actually done, which ought to be done. For it was the Sheriff’s duty to have made the return, the law obliged him. to do so, and his failure ought not to prejudice any party. Therefore, Rice was entitled to the same benefit from the transaction, as if the return had been actually made; and consequently no second execution ought to have issued. The rule being, that if the first execution be from whatever cause charged, that the judgment is satisfied and no other execution can issue on it.
    But it is said, the agreement was that if the money was not paid within four months, another execution should issue. Which is not correct; for the agreement was that the property should be sold under the deed of trust. If the fact though were that it was agreed, a second execution should issue after the four months, yet that would not alter the equity of Rice; because it was an agreement without his consent. On 22 the contrary, he insisted *on the sale; and the property taken, was clearly sufficient to have paid the debt.
    The deed of trust was no objection. For, if it be a mortgage, which it is most like in its terms, then having been only proved-by two witnesses, it was by the very words of the statute expressly void against creditors. If, however, it be taken as another kind of conveyance, then the possession of the property remaining with the grantor, it was equally void.
    The business of the loan proves clearly that in the apprehension of Baird himself, Rice was discharged. It was a bait on the hook, by which he hoped to allure him into the suretyship again.
    The authorities cited on the other side, don’t apply. That in Dougl. was merely a resort to the security after an ineffectual application to the principal. That in Ves. is indeed stronger; but there was no new agreement in that case, as there was in the present. For the plaintiff relied upon his first security, and made no alteration in it. But here Baird made an entirely new contract; which tended to lull Rice into repose, and without the aid of a Court of Equity, would have turned to his prejudice. The decree of the Court of Chancery therefore is right,' and ought to be affirmed.
    
      
      Executions — Release of Surety . — Where the creditor has a judgment upon his debt and an execution thereon in the hands of the sheriff, such creditor by the levy of the execution on the property of the debtor acquires a specific lien on such property; and if such levy be upon the property of the principal debtor, and the creditor thereafter releases, perverts or destroys the lien of such levy, without the consent of the surety bound for such debt, he exempts the surety, to the extent of the value of the property so levied upon, or the loss occasioned thereby, from liability for said debt. McKenzie v. Wiley, 27 W. Va. 661, citing the principal case; Humphrey v. Hitt, 6 Gratt. 509, 526. The principal case is cited for this point in Garland v. Lynch, 1 Rob. 562.
      Same — Same—Effect of Restoration of Property to Debtor. — In Bullitt v. Winstons, 1 Munf. 283, it is said; “The case of Baird, v. Rice, 1 Call 18, is a complete authority for the defendants, both as to the propriety of suffering a sheriff to amend his return according to the truth of the case, and as to the effect (in. favour of the security) of a restoration of the property by the sheriff, to the defendant, with the consent of the plaintiff. Indeed, it is a complete authority in the present case, in which it is unimportant to the success of the appellees, whether the first execution be considered as discharged, or continuing; itis the rather an authority, because in that case there was some evidence that the security, Rice, acquiesced in the arrangement for the discharge of the property, whereas, nothing of the kind is shown in the case before ns.”
      The principal case is cited in this connection in Ward v. Vass, 7 Leigh 145; Steptoe v. Harvey. 7 Leigh 538; Knight v. Charter, 22 W. Va. 428.
      Same — Same—Same-Mere Postponement of Sale.— When goods have been taken in execution under a fi. fa. a direction given by the creditor to the sheriff to restore the goods to the possession of the debtor, is fraudulent, and destroys the lien of the execution on the goods; but a mere direction to postpone the sale under the execution, if without collusion, does not affect the lien of the execution. Fisher v. Vanmeter. 9 Leigh 29. “The difference is obvious,” says .Judge Tuckeb, “so long as tbe goods are in the hands of the sheriff, they are in the custody of the law. But when the plaintiff directs a return of them, he takes them out of the custody of the law: and from that moment they are no longer bound by his execution. These principles will be found to be maintained by the cases of Baird v. Rice, 1 Call 18; and Bullitt v. Winstons, 1 Munf. 269.”
      Same — Same—Accepting Confession of Judgment.— Accepting a confession of judgment from the principal debtor with a stay of execution for a limited time, without the consent of the surety, has been bold to be a release of tbe surety in equity. Ward v. Johnson, 6 Munf. 6.
      See also, Walker v. Com., 18 Gratt. 13, 49; Hopkirk v. McConico, Fed. Cas. No. 6,696, page 503; and footnotes to Humphrey v. Hitt, 6 Gratt. 510; Shannon v. McMullin, 25 Gratt. 211.
      Same — Duties of Creditors. — The principal case is cited in Cole v. Fenwick, Gilm. 138, for the proposition that the creditor is not bound to do anything but sue out his execution; unless he is duly required to give the indemnity bond required by statute, which he may give or not a.t his election. But with this exception, he is at liberty to remain neutral: and the sheriff is to take his own measures in relation to any difficulties which may arise, respecting the title of the goods taken in execntion.
      Evidence — Admissions for Sake of Compromise.— The principal case is cited in Brown v. Shields, 6 Leigh 450, 453, for the proposition that an offer to pay money, byway of compromise to get rid of an action, is not evidence.
      See also, Williams v. Price, 5 Munf. 507, holding that a party is not bound by an admission of his, in an offer, tending to a compromise, which was not accepted.
    
   ROANE, Judge.

The property taken in execution in this case being forbidden to be sold, under an idea of a prior lien, the Sheriff was nevertheless bound to proceed finally in the business, and to make his return upon the execution. Upon the refusal of the appellant to give an indemnity, he might, on application to the Court, have had further time given him to make his return, and in the mean time, have put it upon the parties concerned to litigate their right to the property in question, by filing a bill for that purpose. This is said to be within the power of the Sheriff in such cases in Cowper et al. v. Chitty & Blackston; 1 Burr. 34; and perhaps other cautionary steps are within his power. During all these measures, the plaintiff is not bound to do any thing; he may remain 23 *a silent and in active spectator: and is to be supposed totally unconcerned in the transaction.

But, if he shall voluntarily intrude himself therein, he may release the obligation of the Sheriff to proceed, he may loose his lien upon the property and may discharge third persons otherwise liable, in the event of the property seized being insufficient.

The testimony in this cause is, that the plaintiff, instead of leaving the Sheriff to encounter the difficulties in the legal manner, made a compromise, and authorised the Sheriff to release the property ; Rice, the now appellee, strenuously insisting, all the while, that the Sheriff should proceed to act in the legal manner: and, as an inducement thereto, offering to give up his claim to the property in question under the deed of trust.

This conduct, I conceive, as far as it respected the sum to be paid in future, amounted to'a new contract; a simple contract, indeed, instead of a judgment; and one whereby Black alone became liable, instead of Black and Rice: and the consideration of this new assumpsit on the part of Black, was the releasement of his property then in the hands of the Sheriff.

However improvident this contract might be, in these respects, no person can say that Baird had not a right to make it; nor, that the consideration on which it was founded was not a good one to sustain an action against Black: but, the effect is, that the old contract was thereby at an end, and with it Rice’s liability to pay the debt.

There is no testimony as at the time of the transaction, that Rice did not consider himself discharged; and if, at a future time, the belief of his being liable is inferred from his consenting, or at least not objecting that the balance of Black’s debt should be comprised in the mortgage on the Hackwood estate, that inference is confronted on one hand, by the circumstance •of his forbidding a sale of the property comprised in his trust deed at a time 24 prior, but never ^posterior to the compromise, although it appears from the record, that many executions attached on that property, as well after as before that period; and on the other hand, this circumstance may be merely considered as a tacit consent to become again liable for that debt, in consideration of advantages expected from the loan of the money by Baird and Westmore. Which, however, were never completed; and, possibly, he might have thought it of little consequence, having some prospect, for aught appears to the contrary, of being finally relieved by the Court. But, on the contrary, some opinion may be formed of Baird’s own idea of Rice’s being discharged, from his ■strenuously insisting on a security for that balance, and as soon as he probably got it by assignment of the bonds, seeming to reject the plan of the mortgage by directing M’Kenny not to advance the money.

These inferences are, however, too loose, and too nearly balanced for us to form any decided opinion from them, as to the ideas of the parties subsequent to the compromise.

The case rests, therefore, upon the transactions at that time, and these, in my opinion, amount to a discharge of the appellee from his liability. Of course, the Chancellor’s decree, making the injunction perpetual, must be affirmed.

CARRINGTON, Judge. An execution once levied and- returned satisfied, discharges the judgment forever; and the law is the same, if what is equivalent thereto, be done. In the present case, the officer had taken the property which he restored by the order of Baird, but expressly against the consent of Rice. The Sheriff ought then to have returned the execution with a statement of the facts; and, if he had done so, no new execution could have issued. But, his omission did not affect the justice of the case, or alter the rights of the parties ; which must be considered in the same manner as if the return had been made.

*1 admit that Baird was not bound to indemnify the Sheriff, and if the case rested upon that point, he would have been safe; but, his consenting that the payment should be delayed, and releasing the property, changed the complexion of the case altogether, and discharged Rice from his covenant.

It is true, the answer states that Rice was consenting to the release of the property; but it is not proved; and this part of the answer is not responsive to the bill. Consequently, it is not evidence. I think therefore that the decree of the Court of Chancery is right; and ought to be affirmed.

PENDLETON, President. The execution levied on considerable property, restored to Black by order of the creditor on payment of part of the money, and a further day given for the balance, was a total discharge of the judgment as to Rice, at law, if the Sheriff had done his duty in returning the execution with the truth of the case. But he having neglected this, Rice is driven into a Court of Equity for relief; where things are considered as performed, which ought to have been done. He must indeed appear with a fair aspect, and not have done any act contributing to the omission; or forborne to do what he might to prevent it.

It is said in the answer, that the transaction was with his privity and consent, and this, if proved, would have bound him, and operated no change in his original engagement. But this is not proved; on the contrary, it is disproved, as far as a negative can be, by testimony of facts inconsistent with the supposition. He pressed the sale, and waived his claim under the deed of trust, which repels the idea that he was consenting to the postponement.

But it is said, he might have given security to the Sheriff, and proceeded to sell under the execution. I fancy this was rather a hasty and sudden assertion of the counsel; for I could refer it to that gentleman himself on cool reflection, whether the Sheriff could at the instance of Rice or any 26 other, proceed *to sell under the execution, when he was ordered to forbear and restore the property by the creditor.

As to a sale under the deed; that was to be made by Leatry when required by Rice and Marvault; the subject don’t appear to have been contemplated by them at this time, and if Rice conceived himself discharged from the engagement, he had no right to proceed under the deed, nor vtas he obliged to involve himself anew.

In the list of executions filed amongst the testimony in the cause, there appears a series of them at the suit of Knight against Black from December, 1788, to September, 1792. On some of the intermediate ones, property contained in the trust deed was taken; and the sale forbid, at one time by Eeatry, and another by Rice: But it does not appear that either of them forbid the sale on the last execution in September, 1792, (four months after Baird’s sale) levied on two slaves; neither does it appear that the slaves were in fact sold; but the creditor’s receipt is endorsed for the debt, amounting to 1431. 4s. From hence two inferences seem natural; first, that Rice considered himself as discharged, and so did not appear to stop this sale, as he had done on the former occasions. Secondly, that 1431. was then raised on the seizure of two slaves; which makes it -probable that Baird might have got his ■money, if he had pursued his execution and not made the compact.

But it is said, that the transaction in February, 1793, shews Rice ' at that time considered, and acknowledged himself liable for this debt. I forbear to review the evidence of that negotiation, because I think myself warranted by reason and precedent, in deciding, that propositions on either side, made by parties on a treaty for compromising their differences, if that treaty be not effectual, are not to operate as evidence in a future contest in Court.

I come now to the conduct of Mr. Baird : The cases from Dougl. and Ves. sen. were cited to prove that a creditor to preserve his remedy against a security, 27 *is not obliged to give him notice that the principal has not paid, nor to use legal diligence against him short of the time prescribed by the act of limitations, nor to sue though desired by the security.

Upon which I observe, that the case in Ves. sen. was going a long way for a Court of Equity; and perhaps our act of Assembly, [Dec. 1794, C. 116, l 6, R. C. ed. 1819,] which obliges the principal to sue if required by the security, is better. But, if full force be allowed the doctrine, it will not profit Baird in the present case. If, indeed, he had forborne to act, refused to give the security and left the Sheriff to the duty of his office, no laches could have been imputed to him; and Rice’s exoneration must have depended on the final event of that execution. But Baird acted, he received a part of his money, gave Black a further day for the balance, and directed the property to be restored.

I conclude, as I began, that the Sheriff ought to have returned that the property seized had been restored by order of the plaintiff, which would have been a discharge of Rice at law, and this Court considering it as done, will give it the legal effect.

Affirm the decree.  