Dills v. Cecil , 4 Bush 579 ( 1868 )

JUDGE ROBERTSON

delivered the opinion oe the court:

On an appeal from a judgment of the quarterly court in favor of Cecil against Thornbury, Dills signed the appeal bond as Thornbury’s surety. The circuit court having afterwards rendered judgment againt Thornbury on the appeal, a fieri facias was issued and delivered to the sheriff of Pike county, where all the parties resided; and the execution being returned without a levy or any payment, this action was brought against Dills on the appeal bond. Plis answer to the petition alleged, in effect, that the sheriff could have made the amount of the execution out of Thornbury’s property then liable to levy and sale, but was prevented by the fraudulent suspension of the execution by Cecil and his attorney until after the return day, whereby Thornbury was enabled to remove the property from the State, and thus depi’ived him (Dills) of all means of indemnity, except a successful defense to this action. The circuit court sustained a demurrer to the answer, and rendered judgment against Dills on the bond.

Although Cecil might have maintained an action on the bond without issuing any execution; yet, having chosen to issue one, a resulting lien - on Thornbury’s property inured to the surety of Dills by subrogation as Thornbury’s surety ; and, by thus tying the surety’s hands by the execution and its lien, and then discharging that lien, as alleged, Cecil exonerated the surety. If, as admitted by the demurrer, the facts alleged in the answer be true, they constitute a good bar to the action ; and the circuit court, therefore, erred in sustaining the. demurrer.

Wherefore, the judgment is reversed, and the cause remanded for further proceedings.