Langford's Ex'or v. Perrin; Perrins v. Ragland, 5 Leigh 552

*CARR, J. The judgment in the first of these cases, I^angford’s executor against Perrin, is erroneous. The debt for which Langford was bound as surety, was discharged by the levy of the execution sued out for that debt on the property of the principal debtor Samuel Perrin, and the forthcoming bond taken under that execution. Langford was no party to that proceeding; and if we were io hold that he was not discharged, we should put this surety in a strange situation : he was willing to go a certain length; but we should say he shall go all lengths.

Suppose that after executing the original bond, he had become aware of his danger, and given notice to the creditor to sue; and when judgment was obtained, he had taken the sheriff along with the execution, shewed him ample property of the principal debtor, and told him, ‘ ‘levy the execution ; I clear my skirts of this business; proceed strictly; sell the property, and make the money.” But another friend of the debtor comes, and says, “ I will be surety for the forthcoming of the property; let the debtor have it.” The surety tells him, “Mark, if you do this, it is at your own hazard; I wash my hands of it; I am now clear, and determined to keep so.” Should we suffer this interloper to come upon the surety afterwards, and say, ‘ ‘I have paid this execution; you were once bound for it, and must therefore contribute.” Surely not.

Then, as to the other case, Perrins v. Ragland — If we look at it with the strict eye of a common lawyer, deciding on the deed of the parties, in the

summary proceeding by motion, there would seem to be but little ground for doubt. Ragland has paid off an execution issued against himself and three others, and now moves to recover the whole sum paid, of the other three as money paid by him on an execution issued on a forthcoming bond executed by them as principals, and by him as their surety.

When we look at the forthcoming bond, it recites that an execution had been levied on two slaves the property of Samuel Perrin, and that he being desirous of keeping the same in his possession till the day of sale, had tendered the above bound Park Perrin, Henry Perrin, and Ragland, as sureties for the forthcoming *and delivery thereof &c. And this is signed and sealed by Ragland as well as the rest. Is he not estopped, in this common law,

summary proceeding, from contradicting his deed? But suppose not, are not Park and Henry Perrin, in fact and in law, sureties to this forthcoming bond? I think so. It is true, they were principals in the original judgment and execution: but that execution was levied on the property of Samuel Perrin, the true debtor: that levy discharged the execution, at least, until the property was legally disposed of; if sold, the debt was paid; if a forthcoming bond was taken, the execution was satisfied, unless it was quashed. To this forthcoming bond, I do not conceive that Park and Henry Perrin were necessary parties.

It was given merely for the forthcoming and delivery of the. property taken; that property was hot theirs; and any sufficient surety for delivery of it was enough. Not being bound to enter into that bond, they might have either refused wholly, or decided to enter merely as sureties for the delivery of the property. And, assuredly, on this motion, they could only be liable in the character they assumed; that is, as co-sureties with this plaintiff. CABELL and BROOKE, J., concurred.