The opinion .of the Court was delivered by
Rogers, J.The condition of the recognizance, on which the suit is brought, is for the faithful execution of the order of sale, and truly to account for, and pay over the proceeds of the sale, in such manner as the court shall decree. It is objected, that there was an alias and pluries order, and that the recognizance was taken under the first order, and that the terms of sale were varied in the last, on which the property was sold, without notice to the bail. The first order was awarded on the 5th day of March .1816, returnable last Monday of April 1816, which was returned “unsold for want of buyers.” On the 17th of September 181.6, the court awarded *78an alias, which was also returned “ unsold.” On the 2d of December 1816, they awarded a pluries, which, on the 3d of February 1817, the administrators returned, that they had sold the land for 3000 dollars, which was confirmed. Although it is called an alias and pluries order, yet it is, in effect, nothing more than a continuance of the first order; when the administrator has been unable to effect a sale within the time prescribed, it has been a. matter of course to continue the order on the application of the administrator; nor has it been the practice, to exact new security for the faithful performance of the trust, on the ground that the engagement of the surety has been held to abide the final decree of the court. It is also within the discretion of the court to vary the terms of sale, so as to enable the administrator to sell, by prolonging the time of payment by the purchaser. When, therefore, the recognizance is entered into, it is with a full knowledge of the power of the court, to continue the order of sale, and alter the terms of payment. This practice is more convenient, than to enter new security at each successive renewal. If a person has improvidently entered security for another, the court perhaps, would discharge him from his engagement, if timely application were made, by directing new security to be given. It is necessary to settle the practice, but which ever way it is settled will be of but little consequence, as the surety may protect himself by ordinary care.
But it is contended, that the defendant is discharged, because the guardian of the plaintiff’s wife took a judgment from Cathcart, the administrator, for the money claimed in this suit, with stay of execution for one year. We are of opinion, that this exonerates the bail, and that in this respect, the court were in error. In Chew v. Spencer, 2 Whart. 257, this point was decided; where the ’ holder of a promissory note, on the day it became due, accepted from the maker, a check drawn upon a bank, by a firm, consisting of the maker and a third person, dated six days afterwards, which •check was to be in full satisfaction of the note, in case it was paid at maturity; it was held, that this amounted to a suspension of the remedy against the maker, and discharged the indorser. It is not necessary, as is shown in that case, that the one, should be in satisfaction of the other, to discharge the bail; it is sufficient, that the remedy is suspended. Here, taking the judgment with the stay of execution, amounted to an agreement to suspend proceedings upon the recognizance against the administrator, until the expiration of the stay of execution, and for this reason, the bail is released.
Judgment reversed.