non-concurred, and gave’ the following dissenting opinion: —
A building, which had been treated as personal property, was attached upon a writ, (made to recover payment of a note, given by one Higgins, as principal, and the plaintiff, as his surety,) on Oct. 30, 1849, at 5 o’clock P. M., as the pro*490perty of Higgins. Judgment was recovered against both, defendants at the June term, 1850, of the late District Court, in the county of Oxford, and within thirty days thereafter, being July 10, 1850, the building was seized by an officer upon the execution, issued on that judgment, and subsequently sold. Another attachment of the building was made upon a writ in favor of the defendant, on a claim against Higgins alone, on the same day; judgment was rendered in this last suit at the November term, 1850, of the same Court, in the county of Oxford.
By the return of the officer, the attachment against Higgins and the plaintiff was prior to the other. The date of the attachment on the former, is of a particular hour of the day; and the other is on the same day, without any thing to indicate the time of the day. And the attachment on a writ, when the hour on which it was made is stated, will take precedence of another made on the same day, without the statement of the hour. Fairfield & al. v. Paine, 23 Maine, 498. The attachment on the writ against Higgins and the plaintiff, was treated as being prior to the other, by the seizure of the property attached belonging to Higgins, on the execution obtained in that action, while the other was pending in Court.
After the building was seized on execution and advertised for sale, without any abandonment of the claim created by the attachment and seizure, the property now in dispute was seized and sold on the same execution, by another officer, and in another county. And the question now presented is, whether the seizure of the building as the property of the principal debtor in the execution, and the notice given of the sale of the same, followed by the sale as advertised, without any new seizure, was not a protection of the plaintiff’s property in controversy, so far as the latter was sold to satisfy that part of the execution, which would have been satisfied from the avails of the sale of the building.
In Ladd v. Blunt, 4 Mass. 402, Chief Justice Parsons says, in delivering the opinion of the Court, “ where goods, sufficient to satisfy the judgment, are seized on fieri facias, the *491debtor is discharged, even if the sheriff waste the goods, or misapply the money arising from the sale, or does not return the execution; for, by a lawful seizure, the debtor has lost his property in the goods.”
It is said, by Parker, Chief Justice, in Bailey v. French, 2 Pick. 586, “it is true, where goods of a debtor are seized in execution, it is payment pro tanto to the value of the goods, whether the officer lawfully dispose of them or not.” In Chandler v. Furbish, 8 Greenl. 408, the Court treat the doctrine referred to in Ladd v. Blunt as sound, and regard the seizure of personal property upon an execution as a discharge of the execution, so far as it is sufficient. The cases where this principle has been so emphatically expressed, were not tiiose in which the controversy had reference to personal property, and consequently are not the opinions of the Court upon points actually presented. But they are views of highly distinguished Judges, given, not by way of illustration, but as the settled doctrines of the law; and such they are regarded. This appears from the remarks of Shepley, J., in delivering the opinion of the Court in Tuttle v. Gates, 24 Maine, 395, whore ho says, “ The judgment against the debtor is considered as satisfied, after the sheriff has taken sufficient personal property of the debtor to pay it,” and cites Mounterey v. Andrews, Cro. Eliz. 237; and proceeds, “ The sheriff may sell the property after the decease of the debtor. Clerk v. Withers, 2 L’d Raymond, 1072.” This doctrine is also stated by Parsons, C. J., in the case of Ladd v. Blunt, 4 Mass. 403, who observes, “ Where goods sufficient to satisfy the judgment are seized on a fieri facias, the debtor is discharged, even if the sheriff waste the goods, or misapply the money arising from the sale, or does not return the execution. For, by a lawful seizure, the debtor has lost his property in the goods.” The opinion in Tuttle v. Gates, after quoting as above, goes on, “ the last remark, that the debtor has lost his property in the goods, by such a seizure of them, may be considered to be incorrect, according to the case of Giles v. Grover, 6 Bligh, 279, but it will still remain the unimpeached doctrine of the *492law, that if the goods are wasted, the debtor will be discharged.”
It is a principle of equity, that when a creditor takes property as security from the principal debtor, who has a surety, that he is bound to hold the property, fairly and impartially, for the benefit of the surety, as well as himself; and if he parts with it, without the knowledge of the surety, he shall lose his claim against the surety to the amount of the property given up. Baker v. Briggs, 8 Pick. 122.
The Master of the Rolls, in Law v. East India Co., 4 Vesey, 829, uses this language: “It cannot be contended, on any principle that prevails with regard to principal and surety, that where the principal has left a sufficient fund in the hands of the obligee, and he thinks fit, instead of retaining it in his hands, to pay it back to the principal, the surety can ever be called upon.”
In Cragthorne v. Swinborne, 14 Vesey, 162, Sir Samuel Romillt said in argument, “ a surety will be entitled to every remedy, which the creditor has against the principal debtor, to enforce every security and all means of payment; to stand in the place of the creditor, not only through the medium of the contract, but even by means of securities entered into without the knowledge of the surety, having a right to have those securities transferred to him, though there was not any stipulation for that, and to avail himself of all those securities against the debtor.” In a note to this case, it is said: “ The doctrine of the Court, as to the right of substitution, is said by Lord Brougham to have been luminously expounded in the argument of Sir Samuel Romilly, in Cragthorne v. Swinborne; and Lord Elden, in giving judgment in that case, sanctioned the exposition by his full approval.” Rushforth, ex parte, 10 Vesey, 412; Wright v. Morley, 11 Vesey, 22.
In Hayes v. Ward, 4 Johns. Ch. 130, it is said by the Chancellor, “ It is equally a settled principle in English chancery, that a surety will be entitled to every remedy which the creditor has against the principal debtor, to enforce every se*493curity, and to stand in the place of the creditor, and to have his securities transferred to him, and to avail himself of those securities against the debtor. This right of the surety stands, not upon contract, but upon the same principle of natural justice, upon which a surety is entitled to contribution from another.”
Courts of law have held, that whatever would discharge a surety in equity, would be a good defence at law. Rees v. Berrington, 2 Vesey, jr. 542.
In People v. Jansen, 7 Johns. 337, it is said by the Court, “ that the ancestor of the defendant was a surety only, appears upon the face of the bond, and whatever would exonerate the surety in one court ought also in the other. I am unable to discover any good reason for sending the defendant into a court of chancery.” Boston Hat Man. Co. v. Messinger, 2 Pick. 223.
The Court say, in Commonwealth v. Vanderlin, 8 Serg. & Rawle, 457, “there is no clearer rule in equity, than that when the creditor has the means of satisfaction in his own hands, but chooses not to retain it, but suffers it to pass into the hands of the principal, the surety can never be called upon.” And this doctrine was applied in a suit at law. In Letchtinthaler v. Thompson, 13 Serg. & Rawle, 157, it is said by the Court, “ when the creditor has the means of satisfaction in his own hands, actually or potentially, and does not choose to retain it, the surety is discharged.”
It is not claimed that these principles are of such universal application, that when an attachment of property, supposed to be that of the principal, has been made on mesne process against him and his surety, or seized on execution, that the rights of the latter are abridged by an omission to sell the property, and apply the avails in satisfaction of the execution. It may be real estate, and the creditor is not bound, even after the appraisal and the return of the officer, to accept it in satisfaction. Ladd v. Blunt, 4 Mass. 402. If it be personal property, the creditor is not required to incur the risk of adverse claims and vexatious, and perhaps expensive liti*494gation. Page v. Webster, 15 Maine, 249; Bellows v. Lovell, 4 Pick. 153. In these there is no lien by an agreement between the creditor and the principal debtor, but the right of the former is by a claim, to which the latter’s consent was not necessary to give it effect, and which he could not have resisted.
The question here, is not, whether the creditor may not abandon the property attached on a certain writ or seized on a certain execution, so that it may go back into the hands of the owner, or be holden by an attachment, which was subsequent to that of the one who abandons. But it is, where the property was not abandoned by the first attaching creditor, but was actually sold by virtue of the execution on which it was seized, and while the attachment on mesne process was in force, and on no other, whether measures can be taken by this creditor to withdraw the avails of any part thereof, so that it shall not be applied to the execution by virtue of which the sale was made, and supply the deficiency from property of the surety.
If the building had been sold on the defendant’s execution against the plaintiff and Higgins, before the sale of property of the plaintiff, the latter would be invalid, because the execution was actually satisfied, so far as the property would extend in discharging the execution, though not indorsed thereon. It is believed that this case is not essentially different from the one supposed. The building was not restored to the owner after its seizure; it was not abandoned by the creditor; it was not in the power of the principal debtor to reclaim it; nor could it be taken on an execution in a suit, where there had been a subsequent attachment in another suit, so long as it was held by the execution on which it was seized; it was in the custody of the law, under the first attachment and the seizure on execution in the same suit, and so continued till it was sold; it is obvious, that it was intended to be sold on that execution; that intention was carried into full effect, and the property passed into the hands of the purchaser. If there can be any application of the *495doctrine, fully recognized by this Court, that the judgment against the debtor is considered as satisfied after the sheriff has taken sufficient personal property to pay it, the present is a case to demand it. The defence is not put upon the ground, that the building-was not sold under the seizure upon the execution in the hands of the officer, or that the purchaser did not acquire a property by the purchase. And if the seizure and sale was a satisfaction of the execution on which It was seized and sold, as it regards the owner of the property and the principal debtor, on every principle of justice, the surety should stand in no worse condition.
The final sale of the building related back to the seizure on execution; no seizure was made after that of July 10. It was sold under the notice first given. All the steps taken, from the time of the seizure to the divesting of the property from the owner, were parts of the sale. While the officer was pursuing the course pointed out by the statute, it is not perceived by what authority another officer in another county could seize and sell other property, belonging to the plaintiff, upon the same execution, when it could not be known till the sale of the building, that it would be needed upon the execution in satisfaction thereof.
The proceeds of the sale of the building were to be considered as money received in payment of the execution, and the expenses attending the seizure and sale; it could be applied to no other till the first was satisfied. Before such satisfaction, it could not be retained legally, to be applied afterwards to a judgment not thus recovered.
The plaintiff’s property was sold, and appropriated to the execution, when the process of selling the building was going on by authority of the same execution; and the money raised from the building upon that sale, was not appropriated as the law required.
So far as the plaintiff’s property was taken, which would have been unnecessary, by the application of the avails of the sale of the building, to the payment of the execution *496against him, he has been injured, and is entitled to his remedy in this form of action.
It is however insisted, that the defendant is not responsible, the unlawful sale of the plaintiff’s property being the acts of the attorney, without the special direction of the defendant. It was the duty of the attorney, under the general authority Of his principal, to take measures to obtain the money upon the debt; and his duty did not terminate with the recovery of the judgment. The directions given by the attorney to the officers, in their attempts to collect the debt, were those which were entrusted by the creditor to him; and they were the directions of the former, for which he is liable. But evidence reported in the case, shows that the creditor was actually conusant of the proceedings, touching the attachment, the seizure and sale of the property; and that these proceedings were approved by him; and also that he received the avails of the sale, in part at least upon his execution against Higgins alone; and the money received upon the execution against the plaintiff was the proceeds of his goods, for taking which this suit was instituted.