The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1876-10-05

a surety who makes such payment becomes
only a simple contract creditor OF the princi
pal debtor Eauity considers him as snbro-
gated to all The rights, remedies and secnri-
ties Of tlc creditor and cntitlelro enforce MI
his licns and means of payment. This doc
trinc does not rest upon contract, bnt upon
principles Of natural justice, and is an
equity created by the chancery courts to pre-
vent the judgments being extinguislledas be-
tween the surety and the principal. Lead,
cases in Eq. IS
1t is purely q creature OF Equity. and only
enforced when its application is consistent
| with good faith and sound policy.
Is only enforced in behalf of suretics or
those who are required to pay in order to
protect their own interests and never in IA
vor of mere volunteers. Brock. 254.
Do Sherifs SC. come within these princi-
pies? 1t is his duty having an execution in
his hands to collect the money from the de-
PENDANT or levy and sell and pay the money
into court or to the plaintiff and to make
prompt returns if defendant has no personal
effects, any departure from this line of con-
duct is a breach Of official duty.
Ii he fails to levy in proper case, or hay
ing levied, fails to sell when necessary, he is
liable to be fined, and is further liable to the
plaintiff for the debt. This liability does
not arise out OF any supposed relation OF
principal and surety rs between the officer
and the debtor. but grows out of his breach
OF duty and is the result OF his misconduct and
official delinquency. 1t has been held that
an officer charged with the collection OF tax
es &C., who pays them, cannot maintain
an action thereon without prior request or
subsequent promise. IA Johns 81 Id. 429,
10 Id 800, II. & M. 453.
Undue indulgence to the debtor is not on
Nv an. injury to him, but its tendency is to
increase litigation, and to involve the inno-
cent su-ctics of the officer. It will enable
the officer to wicid the power Of the law in
his own favor, to exact such measures of JUS
tice from the debtor as he may deem proper
and will often end in abuse and oppression.
Funds in his hands will be diverted from
their proper destination, in order to grant
indulgence and favors to those he desires to
befriend, while the debtors property is os-
tcnsibly subject to the lien Of the execution,
it is permitted to remain in his possession,
subject to his control and disposition, and
thus ctlcctllally secured from the demands of
other creditors.
When the debtors personality is duly
applied to prior judgments and executions It
leaves the subsequent creditor successfully to
assert his lien upon the land, But II ne is
permitted through the c0nnvance of the
sheriff to consume his personal property aud
the latter is then allowed to enforce the prior
lien upon the land in large majority OF Ca
scs the junior creditor will be the sufferer.
A doctrine SO, utterly at variance with q |
sound public policy, SO Injurious to the |
rights of creditors and others, and rninous to |
the debtor himself ought not to. receive the |
sanction of aCourt of Equity sal
Decree of court below reversed, Judge Sta
pies delivering the opinion. tas