
    William F. Walker vs. Samuel Gilbert et al.
    Before a joint maker of a note, against whom a judgment is rendered in conjunction with his co-maker, can, under the act of 1822, (Hutch. Code, 558,) prevent a levy of the execution upon his property, on the ground that he is a mere surety of his co-maker, and that his principal has property in the county, he must make oath that he is only surety; and this rule is not changed by the act of 1837, which forbids the creditor levying on the property of a surety or indorser, without having first made and filed an affidavit that the principal has no property in the state, out of which the money can be made. The latter act applies to the case where the fact of suretyship or relation of indorser, as required by the law, ife placed upon the execution ; but where the relation of surety or indorser does not so appear, the act of 1822 is in full force.
    It is therefore no foundation for a supersedeas of an execution against one, who, being a defendant in a joint judgment, alleges himself to be a mere surety therein, that the creditor has levied it on his property without having made the required affidavit that the principal had no property in the state. He should have first filed his own affidavit that he was a surety ; without which no affidavit could be required from the plaintiff.
    To justify the circuit court in superseding a levy and sale under execution, on the ground of the levy being excessive, the excess must be so glaring as to indicate a disposition to abuse the process of the court; a levy upon six slaves under an execution for $900, with ten years of interest due, is not of that character.
    In error from the circuit court of Madison county; Hon. Robert C. Perry, judge.
    William F. Walker filed his petition for, and obtained a supersedeas, against a sale under an execution, issued upon á joint judgment in favor of Samuel Gilbert and others, partners, under the style of Gilbert, Bailey & Draper, rendered on the 23d of November, 1840, against George R. Fall, Samuel M. Puckett, James H. Johnson, and petitioner, for $900 and costs of suit. He alleges that Fall and Puckett were principals, and he a mere surety in the joint note, on which the judgment was based. After narrating the various steps taken in the enforcement of the judgment, which need not be detailed, he states that on the 29th of January, 1849, a venditioni exponas had issued for the sale of six slaves, previously levied on by execution on this judgment; that the plaintiffs had never filed an affidavit, as required by the la\iv of 1837, that the principals had no property in the state out of which the money on the execution could be made. This levy is alleged to be excessive, but the value of the slaves is not stated.
    Other points were made which need not he noticed. The court below dismissed the petition, and Walker sued out this writ of error.
    
      J. M. Duffield, for plaintiff in error.
    All joint promissory notes are joint and several,-(Hutch. Code, 837,) and this has been the law of the state since 1822, and any one of the promissors could be sued and proceeded against to judgment.
    
      The act of 1837, (Hutch. Code, 852, 853,)' requires, that nó levy shall be made on the property of any surety or sureties, before affidavit made and filed among the papers in the cause, setting forth that the principal or principals have no property in this state, out of which the plaintiff’s money can be made. It is made a trespass in the plaintiffs in the execution, to cause such a levy, if the principal have property to satisfy.
    The provision then for the affidavit is full, final, and conclusive, as plain as any provision of law in our statutes, and the right of the surety under this law to a supersedeas of the execution is clear.
    
      A. H. Handy, for defendants in error.
    The objection, that there was no affidavit of insolvency filed, is ineffectual for several reasons.
    1. We deny that the act of 1837 relied on, (see Hutch. Dig. 853, § 6,) applies to cases of this kind. The whole scope and object of that act, seem to have no further application than to indorsers of notes and sureties on forthcoming bonds. The title and purview of the act seem fully to sustain this view. In one section, the clerk, issuing an execution in a case embraced by it, is required to enter upon the execution the drawer, and specify the indorsers in the order in which they stand, to the end, that a party subsequently liable shall not be proceeded against in execution, until the insolvency of the prior parties be established. And in the last section, it is made a trespass for a sheriff to proceed against a subsequent indorser or surety, until the property of the prior parties be exhausted. And the section relied on by the appellant’s counsel, provides, that in no case shall the property of any indorser or surety be levied on, unless an affidavit of the insolvency of the principal be made, &c.
    This statute makes no provision whatever for any entry on the execution, to direct the sheriff in cases of principal and sureties on promissory notes. Yet, if the argument of counsel be sound, and this statute have reference to cases of this kind, the sheriff is a trespasser under the last section, for levying on the property of a surety, although there be nothing whatevér on the execution which commands him to act, to show him that all the defendants are not equally and unqualifiedly to be proceeded against.
    There are other provisions in relation to the sheriff proceeding against the party next liable, after exhausting the property of the prior party, which show that the statute could not have been intended to apply to sureties on notes. For after the insolvency of the principal is established, it will scarcely be contended that the sureties are liable seriatim in the order in which their names are placed upon the note. See 6th Sec.
    It seems, therefore, manifest, that although the language in the 6th section is Very broad in itself, yet when taken in its context, and in view of the general purpose of the act, it cannot apply further to sureties, than those on forthcoming bonds; for executions on such bonds show who is the principal and who the sureties.
    
      2. But in a judgment against several defendants, who may in truth occupy the relation of principal and sureties on a note, all are principals at law. In.an execution in such case, the sheriff cannot but regard them all as principals, for there is nothing to indicate to the contrary, on the execution, as there is in cases of indorsers under the act of 1837. And in the executions here complained of, there was nothing to indicate to the sheriff that Puckett and Fall were principals, and Walker a. surety. This being a proceeding entirely at law, must abide the legal rule, that all the defendants are principals at law.
    3. There is another obvious reason why sureties on promissory notes are not embraced in the statute of 1837. The law regarding all defendants in a judgment to be prima facie principals, the statute had not left such a case unprovided for. The act of 1822, (Hutch. 558, § 47,) had already provided, that the property of the principal shall be taken in execution before that of the surety, provided the surety should make oath that he was surety, and file it with the sheriff. This statute amply protected the surety, though it did not extend to indorsers; and hence the necessity of the act of 1837 for the protection of the latter, which did not exist as to the fórmen
    
      4. As to the excessiveness of the levy on the last execution, the objection, if well taken, could not go to supersede the entire levy, but could only apply to the excess. The petition does not allege, that the excessive levy was caused by the plaintiffs in execution.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a supersedeas to an execution, issued, upon the ground, that the petitioner (Walker) was only surety in the note upon which the judgment was rendered, and that no affidavit had been made and filed by any person, that the principal had no property in the state, out of which the money could be made, as required by the act of 1837. The circuit court discharged the supersedeas upon motion, and the case thence comes to this court.

There are two statutes to be considered in the determination of this cause. The statute of 1822 exempts the property of any surety from execution, if the principal have property in the county, provided the surety make oath that he is only surety. This statute, from its import, relates exclusively to joint makers. Hutch. Code, 588.

The statute of 1837 provides for joint actions against drawers and indorsers of bills of exchange, or promissory notes, and directs that in issuing executions, the clerk shall indorse thereon the names of the drawers and indorsers, particularly specifying the first, second, and third indorsers. It farther provides, that execution shall not be levied on the property of any surety or indorser, unless affidavit be filed, that the principal has no property in the state, out of which the money can be made. Ib. 853.

The latter statute extends to cases not embraced by the former. There is no express repeal of it, nor is there any repeal by necessary implication. They may both well stand. If the act of 1837 have any bearing upon cases falling directly within the previous statute, it makes an affidavit necessary on the part of the plaintiff, that the principal has no property, only when the surety has first made affidavit of the fact of his suretyship. Such affidavit of suretyship is not necessary on the part of an indorser, because the law requires his relation and the order of his liability to be placed upon the record. But where the fact does not thus appear upon the record, as is the case in this instance, and in all suits against joint makers of promissory notes, the defendant is required to make affidavit that he is but surety, and until he does so, no affidavit is requisite from the plaintiff.

This was the construction properly placed upon the law by the court below.

As to the excess in the levy, that will be best shown by the sale. There is no such glaring excess as indicates a disposition to abuse the process, which can alone justify the interference of the court.

It is unnecessary to advert to the other points made in argument, farther than to remark, that after three injunctions and three appeals, in the same case, it could not be expected that the court would be very solicitous to seize on technical points, passed over unnoticed in all the former proceedings, in order to add farther delay already extended to ten years, since the rendition of the original judgment.

The judgment is affirmed.  