Melton v. Howard , 8 Miss. 103 ( 1843 )

Turner, J.

There is a preliminary point in this case which it is proper to notice, and which was decided in a case which was before us at the present term. It is this: the judgment and execution is against two, and only one has sued out the audita querela. For this reason the demurrer should have been sustained. If the surety has any just cause to separate himself from his principal, his appropriate remedy is in a court of chancery. But, on the merits, we have repeatedly decided that mere unbinding delay on the part of a plaintiff to enforce his execution, will not discharge the surety. We are also of opinion, that the plaintiff was not bound to tender an issue, if he believed he could not sustain it, unless the debtor offered to indemnify him for the risk¿ delay and expense, or unless he furnished evidence of the fact that the property levied on was subject to the execution.

Judgment reversed, and demurrer to the audita querela sustained.