Bank at Decatur v. Johnson. it may be said, that the statute does not direct who shall pay them, or whether, where the litigation is bona fide, the estate shall be charged with them. It certainly cannot be assumed from the record, that injustice has been done the plaintiff in error, by directing each party to pay his own costs, ' and we cannot undertake to say that the point has been determined unwisely, or against law, so far as it concerns the parties. But if the court erred in this respect, does an error in the taxation of costs, authorize the reversal of its decree? Our conclusion, from a view of all the points raised, is, that the decree of the Orphans' Court must be affirmed. BANK AT DECATUR v. JOHNSON. 1. When the creditor gives day to the principal debtor, and the surety afterwards, with a knowledge of the fact, agrees to waive all advantage to himself, the inference is that he agreed to the extension, and no consideration is necessary to sustain the agreement for waiving the act. Writ of Error to the County Court of Morgan. MOTION by the Bank, under the statute, for a judgment against Johnson, as one of the makers of a note executed the 26th June, 1839, by one Burnett as principal, and by the defendant and others as sureties, payable one hundred and twenty days after date. The defendant pleaded, that after the execution of this note, he being surety only on the same, the Bank accepted from Burnett, the principal, a deed, by which certain property was conveyed to a trustee, in trust, to secure the Bank for Bank at Decatur v. Johnson. Burnett's indebtedness, in one, two and three years. That this deed was executed by Burnett, and taken and accepted by the Bank, without the knowledge or consent of the defendant, and that by it the time of payment specified in the note moved on, was changed and extended, so as to be payable in three annual instalments. To this plea the Bank replied, that the said defendant, on the 2d January, 1840, by his writing of that date, consented and agreed he would abide by the said deed, and not to avail themselves of any legal advantage which might accrue to them from the agreement to indulge the said Burnett, and he bound himself for the ultimate payment of the debt mentioned in said deed, agreeable to his said indebtedness, in the event the debts were not fully paid and satisfied by Burnett. The replication then avers the debt was never paid by Burnett, &c. The defendant rejoined, that the agreement referred to in the replication, was made after the deed of trust was fully and finally executed, and without any consideration what ever. The plaintiff sur-rejoined, that the agreement was executed on a full consideration, to-wit, the previous indebtedness of the defendant and Burnett, which indebtedness of said Burnett was extended by said trust deed. The defendants demurred to this sur-rejoinder, and the court sustained the demurrer, and gave final judgment for the defendant. This is now assigned as error. HUMPHREYS, for the plaintiff in error, insisted the indebtedness of the defendant as surety, was a sufficient consideration to sustain the subsequent promise, and no new consideration was necessary, if all the facts were known to the party. [Truman v. Fenton, Camp. 544; Theobald on Prin. & Sur. 75-95.] S. PARSONS, contra, argued, that the moral obligation of the surety ceased with his discharge, and therefore nothing Bank at Decatur v. Johnson. remained to sustain the agreement. That was merely a nude pact. [Winston v. Rives, 4 S. & P. 276; Stafford v. Bacon, 1 Hill, 535; Snively v. Read, 9 Watts, 396; 2 Hill, 353, note; Eddy v. Stanton, 21 Wen. 253; Hawley v. Farrer, Verm. Rep.] GOLDTHWAITE, J.-The question arising from the pleadings in this case is, whether the giving of day of payment to the principal is such a discharge of the surety as to require a valuable consideration, moving from the creditor to him, to sustain a promise to pay, made upon a full knowledge of the circumstances from which the discharge is inferred. It is a well settled rule with respect to parties to bills and notes, who are discharged by the laches of the holder, that a subsequent promise to pay, made with a knowledge of the laches, will revive the original liability. [Chitty on Bills, 534, and cases there cited; Thornton v. Wynn, 1 Wheat. 183.] And in Reynolds v. Douglass, 12 Peters, 497, the same principle was held applicable to a guarantor. present case, however, is much stronger, as here, the surety, after the extension of time to the principal, if we are to consider the deed of trust creating a further security, is to be so considered, agrees not to avail himself of any advantage which might accrue to him from this circumstance. No question, in point of law, is raised by this agreement, as to the actual discharge of the surety, but the inference from it is irresistable, that he agreed to the extension allowed by the bank to the principal debtor. The plaintiff was entitled to judgment on the demurrer. Reversed and remanded. The Abercrombie's Adm'r v. Chandler. ABERCROMBIE'S ADM’R v CHANDLER. 1. A return by the sheriff to a fieri facias, that the judgment had been satisfied by the defendant in execution, is bad. Error to Perry Circuit Court. THIS was a motion by the administrators of Abercrombie, against the sheriff of Perry county, suggesting that by due diligence he could have made the money on an execution issued upon a judgment of their intestate, against one Thomas Billingsley. The sheriff, for answer to the suggestion pleaded, that Billingsley had paid off and discharged the debt to the intestate in his lifetime, and had taken his receipt therefor, which he avers was the genuine receipt of the deceased. He further pleaded not guilty, The plaintiff demurred to the first, and took issue on the second plea. The court sustained the demurrer to the special plea, and the jury having found for the sheriff upon the issue in fact, the court rendered judgment for the defendant, from which this writ is prosecuted. The assignment of errors presents the judgment of the court upon the demurrer. A. GRAHAM, for the plaintiff in error, contended, that as the execution was regular on its face, and authorized by the judgment, the sheriff was bound to levy it, and could not defend himself for omitting to execute it, by proving it was paid. He cited 1 Ala. Rep. 543; 3 Id. 28; 6 Id. 314; 7 Id. 703; Watson on Sheriff, 53, 147; Seawell on Sheriffs, 450; 12 Wendell, 96; 13 Id. 35; 1 Hill, S. C. 275; 9 Conn. 141. ORMOND, J.-The plea in this case, or replication to the suggestion, as it is called in the record, is clearly bad. The Abercrombie's Adm'r v. Chandler. duty of the sheriff is to execute all writs placed in his hands, without inquiry into the regularity of the proceedings on which they are founded. Although the process in his hands be voidable, or erroneous, he is nevertheless bound to execute it. He is only excused from doing so, when the process is absolutely void, as was the case in Holloway y. Johnson, 7 Ala. Rep. 660; Watson on Sheriff, 53; Watson v. Watson, 9 Conn. 141; Parmlee v. Hitchcock, 12 Wendell, 96. The facts in this case are, that the sheriff declines to levy, and make the money upon an execution, which is regular upon its face, and authorized by the judgment, and returns upon it, that he has not made the money upon the writ according to its mandate, because the judgment was paid and satisfied by the defendant in execution, to the intestate of the plaintiffs, in his lifetime. These facts constitute no justification whatsoever. If the facts are as he supposes, if the judgment has been discharged by payment, and no formal entry of satisfaction made upon the record, he must nevertheless proceed to execute the writ. No injury can accrue to the defendant in execution from this course. If, in truth, the judgment has been paid off and discharged to the intestate, and his representatives are now seeking to make the money again, out of the defendant, a supersedeas will be granted by the court out.of which it issued; and if the judgment has been satisfied, satisfaction will, on motion, be entered, and the execution be quashed. To permit the sheriff to raise this question, and to refuse to execute a fieri facias, because the judgment has been satisfied, is wholly unwarranted. His duty is to execute the writ, if the court had jurisdiction to render the judgment, without speculating about consequences, with which he has no concern, and against which, to insure the execution of the writ, the law has clothed him with impunity. This return would open an entirely new mine of litigation, not only unexplored by our ancestors, but unknown to them, of which the least evil would be the endless litigation it would produce. If such a return as this could be tolerated, the execution, instead of being the end of the law, would be merely the beginning of the real litigation. It is not difficult to point |