
    The State for the use of Wilson v. Williams.
    To give a surety the benefit of the statute of 1839, relative to tbo stay of execution, &o., tlie judgment and execution must show that he was a surety.
    ERROR to the Marion Circuit Court.
    
      Wednesday, August 21
   Blackford, J.

Debt on a sheriff’s bond. There are two breaches assigned. The first is, that J. H. B. Now-land and Elizabeth Nowland, being indebted to Montellius and Fuller, procured Wilson to be their surety for the debt; that, accordingly, the Nowlands and Wilson gave their note to Montellius and Fuller for the amount of said debt; that the payees recovered judgment on the note against the makers; z fieri facias issued on the judgment and was delivered to the sheriff, which execution was indorsed as being repleviable; that the judgment was rendered upon a cause of action in which Wilson was surety for the Nowlands, which was known to the sheriff; that Wilson gave notice to the sheriff not to take replevinbail, unless the bail would undertake specially to pay the judgment in case it could not be made off the Nowlands, the principal debtors; that one of the Nowlands had property out of which the sheriff could have made the debt; that the sheriff disregarded said notice, and took replevinbail without requiring from him such special undertaking as above mentioned; that execution had since issued against the judgment-debtors and the replevin-bail; and that Wilson has been compelled to satisfy the execution.

O. H. Smith, PL. Brown, and A. G. Porter, for the plaintiff.

W. Quarles and L. Barbour, for the defendant.

The second breach presents the same question that the first does.

General demurrer to the declaration, and judgment for the defendant.

The question to be determined is, whether. the sheriff violated his duty by taking the replevin-bail without said special undertaking?

The statute is as follows: “ When, hereafter, any Circuit Court shall render judgment against two or more, upon any cause of action in which any of the judgment-debtors are security for any other of such defendants, there shall be no stay of execution on such judgment, if the said security or securities object thereto, unless the said security for the stay of execution will undertake specially to pay the same, in case it cannot be made off the principal debtor or debtors.” Stat. 1839, p. 37.

To give the surety the benefit of this enactment, the judgment and execution should show that he was a surety. The circumstance that the statute gives a surety the right mentioned in the declaration is, of itself, sufficient to authorize the Court that tries the cause to have the question determined, upon the application of. one of the defendants, whether such defendant is a surety or not.

It does not appear, by either of the breaches assigned, that the judgment and execution showed that Wilson was a surety; and the declaration is therefore defective.

Per Curiam.

The judgment is affirmed with costs, &c.  