Finley v. King

Weight, J.,

delivered the opinion of the Court.

The Circuit Judge erred in dismissing the petition of Finley for writs of certiorari and supersedeas. He avers that he is the security of Rogers in the note and judgment in favor of King, and that an execution had been issued and levied on thirteen head of cattle, two horses, and »a wagon, as the property of Rogers, the principal in the debt, of value sufficient to pay it; but that no sale had been made of it, or credit given on the execution for said property; and that, after this levy, an alias execution was issued, and had been levied on the property of petitioner, disregarding the previous levy.

If this petition be true, Einley is discharged. No principle is better settled than that, if the personal estate of the principal debtor, of value sufficient to pay the debt, is levied on, the surety is discharged, and the debt, as to him, satisfied. And he may show that he is surety by proof. 1 Meigs’ Dig., 517, 518; Clark and Nance v. Bell, 8 Hum., 26.

If we go out of the petition, as it seems we may do, and look at the executions and levies, they sustain Finley’s petition. 8 Hum., 703; 1 Sneed, 290.

This is a very different case from an attempt on the part of the surety to force the officers to first exhaust the property of the principal debtor, under the act of 1843, ch, 32. (Nich. Supp. 279,) 11 Hum., 445.

Here be stands on tbe levy on tbe principal’s property, and tbe satisfaction of tbe debt by force of the levy.

Reverse tbe judgment, and remand tbe cause for further proceedings.