
    Gunn and Boyd vs. W. & Z. Tannehill.
    Ajudgment was obtained against a principal debtor and his security; the former gave bond and security and stayed the execution, in which the original security refused to join; the original security paid the debt: held, that after the expiration of the stay, an execution issued against all, but to be made out of the principal and his security for the stay in the first instance, will not be quashed.
    John C. Gunn and Jacob Peck, executed a note to W. and Z. Tannehill for ninety-six dollars; Peck executed it as security for Gunn; the note not being paid, they were warranted upon it, and judgment rendered by the magistrate against both. Peck refused to join in a stay of the execution, and it was accordingly stayed by Gunn, who gave Howel as his security. At the expiration of the time for which the ^execution was stayed, an execution issued against all, ordering the sheriff of Knox county to make the money out of the property of Gunn and his security, Howel, in the first instance. Gunn filed a petition for a certiorari and supersedeas, alleging that Peck had paid the debt to Tannehill, arid was prosecuting the judgment for his own use, and prayed to have the cause brought up to the circuit court of Knóx county, and the execution quashed. The writs were issued as prayed for, and the cause docketed. A motion was then made to dismiss the certiorari, and also a cross motion to quash the execution, founded on the testimony of Jos. Williams, who proved, that he heard Wilkins Tannehill tell Doctor Gunn, that judge Peck had paid the debt as his surety, and that he, Gunn, must settle with judge Peck.
    The circuit judge refused to quash the execution, and dismissed the certiorari, and gave judgment against Gunn, and Boyd his security in the certiorari bond, for the debt and costs.
   Opinion of the court delivered by

Judge Catron.

By the acts of 1820, ch. 24, and 1825, ch 82, the security for the debt may refuse to stay the execution, in which case the principal debtor and his security for the stay, shall be liable for the debt to the prior security. This in effect severs the judgment, and places it on the footing of cases of indorsers and makers of notes, where, if the indorsee pays the debt, he may have the judgment against the maker assigned to him, and can proceed upon it to remunerate himself. The act of 1820, was intended to benefit securities in the way it has done in this instance. Gunn is first liable: what injustice is done him by this proceeding? None.. Is there any danger that the Tannehills will obtain a double satisfaction of their debt? None. The moment the money is received, it is received for the use of Peck, who as security for Gunn, paid to the Tannehills the debt. The justice of the case is all on the side of Peck. The circuit court was correct in refusing to quash the execution, and in sustaining the motion to dismiss the certiorari. The judgment will therefore be affirmed.

Judgment affirmed.  