#### *M'Kenny’s Ex’ors v. Waller.

October, 1829.

(Absent GREEN, J.)

Sureties — Mere Indulgence to Debtor — Effect.*—A mere indulgence given by a creditor to a principal debtor, the creditor not binding himself to suspend his proceedings against the principal for any time, though such indulgence be given at the very time the sheriff is about to levy the execution on the principal’s property, and though in consequence of that indulgence the principalis enabled to remove his property out of the reach of future process, does not, even in equity, discharge the surety.

M’Kenny’s executors having obtained judgment and award of execution, in the county court of Spottsylvania, on three several forfeited forthcoming bonds, against Joseph Waller the principal, and Curtis Waller the surety, therein bound, sued out thereupon three writs of fieri facias, dated in April 1822, and returnable to the June term following. These executions were put *155into the hands of the sheriff of the county. Joseph Waller, the principal, had, at the time, personal property in his possession, amply sufficient to satisfy the whole amount of debt. And the sheriff went to his house, three days before the return day, for the purpose of levying the executions on his property then and there, with the avowed design to take it into his own keeping, when Joseph Waller prevailed on the creditors to give him a short indulgence; and they, at his instance, without the consent or knowledge of Curtis Waller, the surety, gave written instructions to the sheriff, not to levy the executions till they should see him. These were the terms of the instructions ; the creditors not binding themselves to suspend proceedings for any time, but giving a mere indulgence to be determined at their own pleasure. In consequence of the instructions thus given him, the sheriff forbore to levy the executions, and made return on them, Not executed by order of the plaintiffs. Very shortly afterwards, June 7th 1822, M’Kenny’s executors sued out new writs of fieri facias; but, after these new executions were put into the sheriff’s hands, Joseph Waller removed the greater part of his effects out of *the county and beyond the reach of the process; so that the sheriff could not find enough of his property, to satisfy the amount of the three executions. What he could find of it, he took; and then, for the residue of the debt, he levied the process on the property of Curtis Waller, the surety.

Upon this state of facts, Curtis Waller insisted, that he was, in equity, discharged from his liability for the debts, by reason of the indulgence given by the creditors to his principal, without his consent or knowledge, at a time when the principal’s property was, in effect, as he alleged, in the sheriff’s hands, and could not have been exempted from the executions then in force, or withdrawn beyond the reach of future process, without the voluntary permission and order of the creditors to the sheriff. And he presented his bill to the court of chancery of Fredericksburg, setting forth this equity, and praying, that M’Kenny’s executors should be enjoined from further proceedings on their executions against him.

The chancellor granted the injunction: the executors of M’Kenny answered the bill: depositions were taken by both parties, and the circumstances of the case, as above stated, were clearly proved: and, upon the final hearing, the chancellor decreed that the injunction should be made perpetual. M’Kenny’s executors appealed to this court.

Harrison, for the appellants,

cited Norris v. Crummey, 2 Rand. 328, and Hunter’s adm’rs v. Jett, 4 Rand. 104.

Briggs, for the appellee,

said, that this was a peculiar case, and ought to be decided upon its own circumstances. Here, the property of the principal, and that amply sufficient to satisfy the whole debt, was, in effect, in the sheriff’s hands: and he was only prevented from taking it into his own keeping, by the express instructions of the creditors; who, of their own accord, relinquished their hold upon it, and thus gave the principal debtor the opportunity, of which he availed himself, to put that very property beyond the reach of future process. It surely could not be said, in this *case, as was said in Peel v. Tatlock, 1 Bos. & Pul. 422, that the favor shewn by the creditor to the principal, did not work an injury* to the surety. The injury was palpable and certain.

*

Principal and Surety — Here Indulgence Oiven Debtor —Effect as to Surety. — Mere indulgence, given toy the creditor to the principal detotor, such, as suspending the proceeding against the principal toy withdrawing the execution from the hands of sheriff before levy, does not discharge the surety. For this proposition the principal case is cited in Alcock v. Hill, 4 Leigh 625; *foot-note*to Harnsberger v. Geiger, 3 Gratt. 144; Humphrey v. Hitt, 6 Gratt. 528, and *note;*Walker v. Com., 18 Gratt 43, and *note; foot-note*to Shannon v. M’Mullin, 25 Gratt. 211; Armistead v. Ward, 2 Pat. *&*H. 512; Coleman v. Stone, 85 Va. 388, 7 S. E. Rep. 241; Ambler v. Leach, 15 W. Va. 697; Knight v. Charter. 22 W. Va. 429.

In Chichester v. Mason, 7 Leigh 262, in which case the court was equally divided as to whether the surety was discharged toy the withdrawal of the execution it is said, toy Cabell. J., with whom Brooke, J., concurred: “I have carefully examined every case that has ever been decided toy this court, having, aslsupposed, any reference to the exoneration of sureties, from Croughton v. Duval, to *M'Kenny's Ex'ors v. Waller;*and I think I shall not toe found to toe mistaken, when I say, that there will not toe found in anyone of them, any allusion to the question, whether the release or withdrawing of an execution put into the hands of the sheriff, is or is not a discharge of the surety. Croughton v. Duval, 3 Call 69; Ward v. Johnson, 6 Munf. 6: Hill v. Bull, Gilm. 149; Bennett v. Maule, Gilm. 328: Norris v. Crummey, 2 Rand. 328, and Hunter’s Adm’r v. Jett, 4 Rand, 104. In the first of these cases the question was as to the effect of the neglect or refusal of the creditor to sue the principal; and in all the others the question was, whether the surety was discharged toy the creditor having given time, and thereby tied up his hands, so as to impair the remedies of the surety. When, therefore, the court in *M'Kenny's Ex'ors v.*Waller, refer to the principles heretofore decided toy this court, as decisive of that case, the inevitable inference (as I conceive) is, that the attention of the court was directed solely to the question, whether the creditor had so'indulged the debtor, as to tie up his hands, and thereby injure or impair the remedies of the surety. If this inference toe correct, that case will toe stript of much of its force as authority even in cases whether the circumstances may toe precisely the same.” The principal case is also cited in the same case at pages 261, 263, 264, 265, 266.

And in Ashby v. Smith, 9 Leigh 164, where the attachment which had been *levied*on the goods of *155the principal debtor was released, which was held to discharge the surety in equity, the court said, at page 172, that the cases of *M'Kenny v. Waller,*and Alcock v. Hill were rendered of doubtful authority by the opinions of Brooke and Caeell. in Chester v. Mason. But in Humphrey v. Hitt, 6 Gratt. 528, Baldwin. J., says: “I am for adhering to the decisions of this court in *M'Kenny v. Waller,*1 *Leigh*434, and Alcock v. Hill, 4 Leigh 622: which have not been shaken by any subsequent adjudication; and which establish a principal that furnishes a safe and certain guide. To overrule them would give rise to much litigation; and the present case is a strong illustration of the evil. Here a surety, though cutoff from no remedy, is seeking to be discharged from his obligation, by speculative opinions of witnesses as to the probability that the principal had property sufficient to discharge the debt in part, if the *fl. fa.*had been levied, without any specification or description of the property, or any in formation in regard to the validity of the title.”

In Coffman v. Moore, 29 Gratt 248. it is said: “The surety has a right to stand in the shoes of the creditor in the enforceme'nt of such securities; and the creditor, as to such securities in his hands and under his power, is considered as trustee for the surety, and if he is unfaithful, he not only fails in his duty as trustee, but violates the rights of the surety, as against his principal, and is liable for the loss which the surety thereby sustains. These principles are iirmly established by repeated decisions of this court. I need only refer to the following cases: Ward v. Johnson, 6 Munf. 6; *M'Kenny v. Waller,*1 *Leigh*434; Alcock v. Hill, 4 Heigh 622: Humphrey v. Hitt, 6 Gratt. *supra,*in which Judge Baldwin, with the unanimous concurrence of the other judges sitting, gives a clear and forcible exposition of the doctrines on this subject. Then follows Harnsbarger v. Kinney, 13 Gratt. 511; and the recent cases of Shannon v. McMullin. 25 Graft. 211; Harrison v. Price, Ibid. 553.” The principal caséis cited in Rowe v. Hardy, 97 Va. 677, 34 S. E. Rep. 625. upon the question of the sufficiency of an officer’s return of process.

COALTER, J.,

delivered the resolution of the court, that, according to the principles of the cases decided by this court on this subject, there was no ground whatever on which the decree could be supported.

The decree was reversed, the injunction dissolved, and the bill dismissed.