This is scire facias for a new execution on a judgment in favor of the plaintiff against the defendants, and one Lord, who has deceased since the rendition of judgment, the first execution having been returned satisfied by a levy on the lands of the defendants.
The judgment was rendered on a promissory note, in' which William A. Worcester was principal, and George Worcester and said Lord were sureties, which relation of the parties was known to the plaintiff. The lands of the principal were attached on the original writ, subject to a prior attachment in another suit, which was pending when the levy was made; and the lands were appraised and taken subject to that attachment. For this cause it is admitted that the levy was void and conveyed no title to the plaintiff.
It is claimed by the learned counsel for George Worcester, that the failure of the plaintiff to seize the lands on the execution and record the seizure as provided in E. S., c. 84, § 24, and thus preserve the attachment until the prior attachment should be disposed of, and instead thereof making the void levy, discharged said George Worcester as surety, and that no new execution should be issued against him.
The plaintiff corporation was located in New Hampshire, and the note was made and dated there. The counsel on both sides *330agree that the rights of the parties are to be determined by the law of that state.
In Bank v. Rogers, 16 N. H. 9, the supreme court of that state held, that where the creditor brings his action against the principal debtor and attaches his property, and afterwards discontinues the action, or fails to preserve the lien created by the attachment, the surety is not thereby discharged. The same rule was reaffirmed in Barney v. Clark, 46 N. H. 514. It is regarded the settled law of that state, and we think it is decisive of this case. The plaintiff corporation did not voluntarily discharge its attachment. It did so by mistake of law. It could not be required to seize and record the seizure, and await, for an indefinite period of time the issue of the prior attachment; nor could it be required to levy without regard to the prior attachment, and thus take the hazard of losing the land levied on by the enforcement of that attachment. The surety had the means of knowing the proceedings on the execution. He was a party to it, and his lands were taken by the levy, as well as those of the principal. If he desired the benefit of the attachment of the lands of the principal, he could' have satisfied the debt, and taken charge of the service of the execution, and thereby have accomplished his purpose. Failing to do so, he cannot equitably complain that the plaintiff did not subject itself to the long delay of awaiting the issue of the prior attachment.
Default to stand. New execution to issue as grayed for.
Peters, C. J., Walton, Virgin, Emery and Haskell, JJ., concurred.