
    
      ELLIOT vs. COX.
    Appeal from the court of the first district.
    The surety on an injunction bond cannot resist payment on the ground that the plaintiff did not record his judgment.
   Martin, J.

delivered the opinion of the court. The defendant, sued as the surety on a bond for obtaining an injunction, which was afterwards dissolved, denied that any thing occurred as a breach of the condition; and averred that if any thing did, the loss was sustained by the plaintiff’s own neglect, who is thereby disabled from subrogating the defendant to the plaintiff’s rights, mortgages and privileges.

Eastern Dis'ct

Nov'ber, 1826.

An alias fi. fa. does not operate a discontinuance of the original writ of execution.

The estimation of property seized in execution, does not preclude the creditor from shewing its real value in a suit against the surety.

The plaintiff had judgment, and the defendant appealed.

His counsel urges that the surety is in this case discharged, because "by the act of the creditor the subrogation to his rights, mortgages and privileges, can no longer be operated in favor of the surety." Civil code, 432, art. 22—new code, 3030.

This is contended to be the case, because,

1. The plaintiff neglected to record his judgment.

2. The fi. fa. stayed by the injunction, was a lien or privilege on the personal estate of the principal, which the injunction did not destroy, although it suspended the sale. This lien or privilege was lost by the act of the plaintiff in discontinuing the first fi. fa. by suing out a new one or alias.

We do not think that the surety may, in this case, avail himself of the plaintiff’s neglect to record his judgment, because the former interfered, or assisted the principal in interfering with the sale, at a period when the plaintiff had not acquired the lien or privilege the registry might have given.

Neither can we imagine that by an alias, or pluries fieri facias, the first suit is discontinued—if any property has been seized under it, the seizure may take place without the alias issuing, and we cannot see how the alias may prevent it—the alias are used to authorise the seizure of other property, when that originally seized proves insufficient. Neither the alias nor the pluries affect any right acquired by the plaintiff under the original fi. fa.

The record shews the seizure of the plaintiff’s house and lots, of sufficient value to satisfy the plaintiff; the dissolution of the injunction, on the issuing which the surety was bound; and that finally, the United States absorbed all the principal's property, so that the plaintiff can no longer expect payment, except from the surety.

Our attention is drawn to a bill of exceptions taken by the surety’s counsel, to the opinion of the court, admitting parol evidence of the value of the house and lot seized, and of the possession of several slaves by the principal.

Preston for the plaintiff, Strawbridge for the defendant.

The evidence offered of the value of the property, is opposed as contradicting the appraisement subsequent to the seizure. As this appraisement would not be binding on the surety, we think he cannot avail himself of it, in such a manner as to preclude the plaintiff from showing it was too low.

The evidence of the possession of several slaves, is opposed as irrelevant. The case was not tried by a jury, and if the evidence be really irrelevant, we need not be bound by it; it would be a waste of time and money to remand the case for a new trial without this evidence.

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