Brown vs. Ex'rs of Riggins.

& Prout, and which maintains the doctrine that suretyship is merged in a judgment, are novelties in the law, wholly unsupported by, and adverse to, all authority; or, to use the language of the Chief Justice of Pennsylvania, in The Commonwealth vs. Miller, "Such a doctrine is unsupported by either law or reason."

If the authorities we rely on are to have any weight, Brown is discharged, even if the Court should be of opinion that the contract between Riggins and Griffin was not binding.

Although our execution was not levied as directed by Brown the surety, still he is discharged, for the levy was prevented by the interference of Riggins, the creditor; he forbade it without Brown's consent, whereby the property of Griffin was lost to the surety. Indeed, under our law, which fixes a lien on all the property of the defendant after judgment, no levy or direction of levy by a surety is necessary to discharge a surety. If by any act of the creditor that lien is lost, so as to throw the whole debt on the surety, or to injure or jeopard his interests, he is released. In England, and in most if not all of the other States, judgments are not liens upon personal property; so that no binding interest attaches in behalf of the creditor, until a seizure by the officer.

In the case at bar, it is charged not only that the lien was lost to enough property of the principal to have satisfied the judgment, so as to endanger the surety, but that the whole debt had been thrown on him; and it is also charged that Riggins colluded with the principal, and yet the Court below holds that there is no equity in the bill and dismisses it on motion, without permitting us to go into proof.

Looking to the law of the case and the charges in the bill, we cannot help thinking that the Court below, unlike the great English Chancellor, is not "glad to lay hold of any act that will discharge a surety."

By the Court.-NISBET, J., delivering the opinion.

This bill was filed by Brown, a surety for White, Head, Kilpatrick, and Griffin, against Riggins, the creditor, for relief; alleging that he was discharged by the acts of the creditor. In this case the debt was reduced to judgment against the principals and the surety. The bill charges, that Riggins, the creditor, after judgment, and the execution being then in the hands of the sheriff, agreed with Griffin, one of the principals, to grant him time, upon

Brown vs. Ex'rs. of Riggins.

consideration that he would deliver up to him his negroes at the expiration of the time; and gave directions to the sheriff to stay proceedings on the fi. fa. Also, that at the time of filing the bill, there was no property of any of the principals to be found.

The bill further charges, that the execution was levied on sufficient property of White, another of the defendants and principals, to satisfy it, and was by order of the plaintiff dismissed. It proceeds to pray for a perpetual injunction of the plaintiff's execution against the surety. One other fact charged in the bill ought to be stated, and that is, that the property levied on belonging to White, was either taken and appropriated by the plaintiff and creditor Riggins, or run off, so as not to be reached by the officer.

The answer came in, and at the trial term the respondents moved to dismiss the bill upon the following grounds:

1. Because the relation of principal and surety ceased after judgment.

2. Because an agreement or contract for indulgence to a principal, after judgment, is not valid, and does not bind the parties thereto, for want of consideration, and therefore the surety is not discharged by such agreement.

The presiding judge overruled the first ground, and dismissed the bill on the second; and to the decision thus dismissing the bill, the plaintiff in error, Brown, has excepted.

[1] Every principle involved in this case was settled in the case of Curan vs. Colbert, argued at the same term. The contract may be conceded to be void as between the creditor, Riggins, and the principal, Griffin, and still, in the case made, the contract discharged the surety. If not a valid contract, yet it was such an act, as injured the surety, as increased his risk, and exposed him to liability. Whilst it is true, as a general proposition, that mere forbearance to call upon a principal does not, per se, discharge the surety, yet if the consequence of that forbearance is injury to the surety, it is equally true that he is discharged. Particularly after judgment, is it dangerous to do any act which increases the risk of the surety. In this case, the principal, Griffin, was at the time of the indulgence given, solvent; and at the time when the creditor came down upon the surety for payment, he was insolvent ; here is injury to the surety. It has been held that a letter to the sheriff directing a suspension of proceedings against a principal on an execution, discharged the surety. See Butler vs. Winston, 1 Munf. R. 269.

Brown vs. Ex'rs of Riggins.

But the dismissal of the levy on the property of the principal, [2.] White, beyond all question discharged the surety. A levy, as to the surety, is a satisfaction. If a creditor who has effects in his hands sufficient to discharge the debt, belonging to the principal, releases them, the surety is, without controversy, discharged. I shall not repeat the argument which I wrote out, in the case of Curan vs. Colbert; for the reasoning and authority which govern this, see that case,

Let the judgment of the Court below be reversed.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF THE STATE OF GEORGIA,

AT GAINESVILLE,

SEPTEMBER TERM, 1847.

No. 57. JOHN SHACKELFORD, plaintiff in error v8, JAMES E. HAYS, defendant in error.

[1] The miscarriage of the mail, in the transmission of papers to the clerk, is no ground for continuing a case, unless shown to be from Providential cause.

Error to Jackson Superior Court.

Motion to enter this case upon the docket of the Supreme Court, at the Gainesville September Term, 1847.

The writ of error was made returnable to the March Term, at Cassville, 1847, being the first term in that judicial district after the signing of the bill of exceptions, and the proper term to which the writ was returnable, under the constitution and the law creaating and organizing the Supreme Court.

The papers were mailed at Jefferson, Jackson county, and addressed to the Clerk at Milledgeville, in time to have been received by him, and docketed for Cassville. They were not received by the clerk until after the adjournment of the Court to which the writ was made returnable, owing to some casualty, the nature of which did not appear.

OVERBY, PEEPLES & COBB, for the plaintiff in error.

MITCHELL, for the defendant in error.