#### THEOPHILUS EASON *v.*WILLIAM D. PETWAY.

A sheriff is not bound, independent of the act of 1826, eh. 31, to levy an execution, and raise the money upon the property of the principal debtor, in preference to that of the surety. And if he-even combines with a third person, to throw the debt upon the surety, when he might have made it out of the principal, he does not thereby render himself liable to the action of the surety.

This was an action on the case tried at Pitt, on the Fall Circuit of 1830, before his honour Judge Daniel. The declaration contained two counts, on the last of which the question arose. This count alleges, in substance, that the plaintiff became bound as the surety for one Henry Brown-rigg, in two several notes to one Gray Little, for one hundred dollars each, and the said Brownrigg being in failing circumstances, and the said notes being due and unpaid, the plaintiff applied to Brownrigg, to secure him on account of his liability, and that at the special instance and request of the plaintiff, the said Gray Little sued out two warrants on the notes aforesaid, against Brownrigg, and the plaintiff as his surety, on the 5th March, 1824, on which warrants judgments were confessed on the same day by both the defendants: that soon after the judgments were obtained, executions were issued thereon, and were placed in the hands of the defendant, who was then an *45acting constable in the county of Edgecombe, with instructions to levy the same on the property of Brownrigg, and that the executions were levied by the defendant, on the *18th*December, 1824, on two lots, Nos. 9 & 10, in the town of Stantonsburg, the property of Brownrigg, which were more than sufficient to satisfy said executions: that the defendant, Petway, well knowing that the plaintiff, Eason, was the surety of said Brownrigg, and that the said notes were sued upon at the request, and for the benefit and protection of the plaintiff, with a view to injure the plaintiff, and to contrive that the said money should be levied out of the property of the plaintiff, and not satisfied by the sale of Brownrigg’s property, and fraudulently combining and confederating with one Elijah Price, who also had placed claims against Brownrigg, in defendant’s hands for collection, to injure the plaintiff, and so to contrive that the' said executions should be satisfied out of the property of the plaintiff, purposely and fraudulently refused to return the said levies to the next County Court of Edge-combe, in order that the property levied on, might be condemned and sold to satisfy said executions, although he was expressly instructed and required so to do: but that at the same time, viz. February Sessions 1825, of said Court, the defendant returned sundry executions at the instance of Price, and others, on all of which, levies had been made by the defendant on the aforesaid property of Brownrigg, subsequently to the levies so made by him on the executions of the said Gray Little, to wit, on the 14th February, 1825: that the property of Brownrigg was accordingly sold under the last levied executions, and no part of the proceeds applied to the payment of the executions, at the instance of Little, which were afterwards, to wit, on the 10th March, 1825, levied by the defendant on the lands of the plaintiff, in the county of Edgecombe, and satisfied by the sale of them, there being no other property of Brown-rigg to be found.

Upon the evidence introduced in support of this count, the Judge instructed the jury, that if there was a combination between Price and the defendant, Petway, to postpone the executions of Little, and give the other executions the *46preference, and thereby throw Little’s executions on the land of Eason, then it would be a fraud upon Eason, and he would be entitled to recover of Petway, damages for the injury sustained by the sale of his land; but if there was no such combination, then the action would not lie. The Judge also instructed the jury, that whether there was such a combination or not, was a question of fact, which they might infer from the evidence, if they thought it sufficient. The jury returned a verdict for the plaintiff, upon the second count in the declaration, and the defendant appealed.

*Badger*and *Mordecai,*for the defendant.

*Devereux,*for the plaintiff.

Ruffin, Chief Justice.

— The action cannot be supported upon any idea, but the one, that the plaintiff, as surety, has the right, as against his principal, to call upon the latter to pay the debt in the first instance; and that the sheriff is bound to respect that right, by levying the debt from the principal, if it can be done, or, at least, can be conveniently done. The Court cannot sanction the latter part of the proposition, but deems it altogether untenable. We think it settled law, that all defendants, when once fixed by judgment, are equally the debtors, and together make but one debtor. No difference in the order of their liability is recognized at law, in respect to any proceedings upon process on the judgment. *(Ex parte King*and *Morrison,*2 Dev. 343. *Benford*v. *Alston,*4 ib. 351.) The relation between principal and surety creates rights and duties among the defendants, as between themselves; but it does not affect third persons. The sheriff may levy the debt from either defendant, or in such proportions as he chooses. *Harrington*v. *Wood,*9 Mass. Rep. 251. *Hill*and *Nalle*v. *Child,*3 Dev. 265. This rule is sustained by legislative authority in the recent act, which makes it the duty of the sheriff not to distrain the estate of the surety, if he can find that of the principal, provided the record and process show those parties to stand in that relation. It cannot therefore, in legal contemplation, be an injury to the present plaintiff to have made him pay a debt in the *47first instance, which he was under a direct and primary legal liability thus to pay.

The seizure of Brownrigg’s estate, did not oblige the sheriff to the plaintiff, in this suit to proceed on that seizure. It did so oblige him, as between him and the creditor, in that execution ; indeed he was equally bound to the creditor, whether he had levied or not, provided either defendant had sufficient property. But neither defendant was discharged by the seizure, since the property was restored, or otherwise appropriated to the use of the owner, and the present plaintiff cannot complain of the acts of the sheriff, since they are all within the mandates of the writ, and justified by it, without reference to his motives. The opinion in the Superior Court, seems to assume these positions as correct, and is founded upon a supposed fraudulent combination between the defendant and another. It does not appear to us that the alleged combination can make a difference. It may be admitted that it was an unlawful conspiracy, for which the parties might be indicted. It is frequently criminal for many to combine to effect even a lawful end. It is doing a lawful thing by unlawful means. But that offence is to the public. A private person cannot complain of the conspiracy as such; but only when it operates to his injury, that is to say, when as to him the object of the conspiracy is unlawful. There must, in the terms used in the Superior Court, be “ a fraudulent combination.” Here, none such could exist; because the purpose alleged and complained of, by the plaintiff, was only to make him pay the debt, instead of his principal, and that was not an unlawful, but a lawful intent or act, and therefore not a fraudulent one.

Per Curiam. Judgment reversed.