The opinion of the court was delivered by
Rogers, J.The court charged the jury, that taking the bond and mortgage did not of itself amount to an extension of the time of payment of the execution, and that the sheriff was not thereby discharged, nor the plaintiff barred in his action. But if they were taken upon an agreement to extend the payment of the execution in the hands of the sheriff until the time mentioned in the mortgage, the sheriff would be discharged from proceeding further on the writs, and the defendant,' as surety, would likewise be discharged. To this part of the charge, in the abstract, no reasonable objection can be made; for the execution of the bond and mortgage is but a collateral security, and as such does not amount to a satisfaction of the debt, nor to an agreement for a stay of execution. In Sterling v. Weakly, 9 Watts 273, the principle was ruled, that a surety was not discharged by a collateral undertaking, but that the principal might proceed against his debtor before the time expired when the additional security became payable. If there was a special contract, by which the plaintiff agreed to delay proceeding with his execution, it would relieve the .sheriff from liability, but such an agreement cannot be inferred on slight or doubtful grounds. It was the duty of the sheriff to make the money according to the command of his writ, and when he asks to be discharged from the liability *151created by an omission to perform his duty, he should be prepared with clear and explicit proof of the facts on which he relies. Unless this rule is strictly observed, the rights of creditors will be in great jeopardy. The rule exacts nothing, but what the sheriff can easily comply with, and which is moreover absolutely necessary to protect the interests of others. As it is, prima facie, a collateral security, the burthen of proof, to extend its operation beyond its legitimate limits, is thrown upon the sheriff, and hence it is necessary for the defence of his surety to show a special contract, and the nature and extent of it. Ordinary care and diligence on the part of the sheriff, will in all cases protect him against the possibility of risk. The plea avers that the plaintiff took the bond and mortgage in satisfaction of the executions, and that the plaintiff extended the lime of payment, and agreed to receive the same in instalments, &c., and that he discharged the sheriff’ from executing the said writs and process, and proceeded on the mortgage, and sold the house and lot, &c. Of these material averments, there is no proof whatever, certainly not such as the law requires. H. Snyder, who was agent of Mr Bellas for the special purpose only, so far as appears, of procuring the execution of the bond and mortgage by App, does not recollect distinctly what was said as to the time allowed for payment of the money. He fails altogether to prove any contract or agreement to stay the execution. To arrest the due course of law on such loose and indefinite recollections, would be attended with the most disastrous consequences to creditors. No prudent sheriff’ would delay the execution of his writ with no better warrant; and if, in this case, he omitted to proceed to collect the debt on such representations, he may charge the loss to the account of, his own folly. There is nothing in the evidence which would enable the defendant to claim an exemption of his goods from the ordinary operation of an execution, duly placed in the hands of the sheriff. '
It further appears from the evidence, that no reasonable doubt can be entertained that the personal estate of the defendant was amply sufficient to pay the debt, and the jury would be justified in coming to the conclusion, that the debt has been lost by the culpable negligence of the sheriff. It is nothing to the purpose that the defendant is a surety, as he stands in this particular in the place of his principal, with the same responsibilties as the sheriff himself.
It is insisted that the court erred in instructing the jury, that the bank cannot recover in this action, for the use of other persons as well as itself, on principles of subrogation. The bank can only recover, as the court truly say, on its own rights and equities. The suit was brought for the use of the bank alone, to the September term 1836, and all the breaches in the declaration are assigned to the damage of the bank. Afterwards, viz. February 11, 1839, the cashier of the bank agrees, on behalf of the bank, that any of the endorsers of Mir J. App, the defendant, or his co-endorsers, who may have paid money for him fi> the bank, be respectively sub*152stituted for so much as they may have paid, and be entitled to recover it back from the defendant, without prejudice to the rights of the. bank, for so much as still remains duelo it, or affecting its rights or liabilities in any, way whatever. If'the endorsers here have been compelled to pay m'oney to the bank, they undoubtedly have an interest in the action of the sheriff on the writ of execution in his hands, and no difficulty is perceived in their indemnifying themselves, if injured by the neglect of the sheriff, by a suit on the bond for their use, against the sheriff and his sureties.- There would, therefore, seem to be no necessity of resorting to the doctrine of substitution for. the- relief of the endorsers , who may have been forced, to pay the debt of their principal. But be this as it may, yet there are objections to the substitution claimed, arising in this case out- of the :act of limitations, which cannot, as I can perceive, be surmounted. The money, as clearly appears, was paid by the endorsers to the bank, more than five years before the attempt at substitution, and this,- of itself, forms a good defence- for the sureties-on the sheriff’s-bonds.' That a substitution cannot, under such circumstances, be permitted, is ruled -in French v. Mehaffy, 8 Watts 384. The doctrine of substitution being one of mere equity and benevolence, will-not- be enforced .at the expense of a legal right; a surety, therefore, as is there held, whose claim against his principal, for money paid on a judgment against them, has been defeated at law, cannot be substituted for the plaintiff in the original judgment. On the same principle he cannot be substituted where his claim is barred by the act of limitations. It would- be unjust to deprive the sureties of a defence which' would be available if the endorsers are put to a suit on the sheriff’s bond. There is another objection equally fatal to the claim of substitution. The doctrine of substitution only applies where the principal has been wholly paid. It cannot be permitted .where- he has been in part only. Thus, in Kyser v. Kyser, 6 Watts 221, it is ruled, that there can be no such thing as substitution-to the right-of a-party who is not wholly satisfied. The court cannot interfere with his security while a part of the debt remains unpaid. Judge Kennedy, who delivered the opinion, remarks, that until the plaintiff is wholly.satisfied there ought and can be no interference with his rights, or his securities, which might even by bare possibility prejudice or embarrass him in any way in the residue of his claim. But- the rule is adopted not only for the benefit of the plaintiff, but, the- defendant also ought not to be subjected to the inconvenience which must arise from the .trial of several rights in one action, and .the-rendition of several and distinct judgments. We cannot, therefore, believe that the consent of the plaintiff can alter the case, .particularly as the endorsers here- may bring suit on the bond.
We have examined the second bill of exceptions, in which we are not sensible the court have erred. The evidence has some although perhaps not a material bearing on the issues.
Judgment- reversed, and a venire de novo awarded;