The opinion of the Court was delivered by
Smith, J.An exception was taken by the counsel of the defendant to the Court’s refusal to admit in evidence on the trial of the cause, the report of auditors appointed by the Court of Common Pleas at the instance of the creditors of William Johnston, deceased, to marshal the moneys arising on the sale of the real estate of said deceased, in order that the Court might distribute the same according to law; and, by which report, a balance of 862 dollars and thirty-four cents, appeared to be due and remain in the hands of the sheriff, after payment of all the judgments obtained against the said William Johnston, in his life-time. And also the report of auditors appointed by the Orphans’ Court, on the administration account of the executors of the said William Johnston, deceased, from which it further appeared, there were balances in their hands for distribution among the creditors of the deceased. This evidence was rejected, as irrelevant. The note, on which the suit was instituted, had been drawn by William Johnston, and indorsed by John Ramsey, he was then, a mere surety, and as such, entitled to be favoured in law. The evidence he offered was to prove, and would have proved, that a large balance, arising on the sale of the real estate of William Johnston, was in the hands of the sheriff, which was subject and liable to the judgment of the bank, and would have been obtained, if due diligence had been need. The case then, if proved, as offered by the plaintiff in *205error to the Court below, would have come within the principle stated by the present Chief-Justice, in Bellas v. Miller’s administrators, S Serg. & Rawle, 457, “that no rule, in equity, was clearer, than that where a creditor has the means of satisfaction in his hands, and chooses not to retain them, but suffers them to pass into the hands of the principal, the surety can never be called on.” Here, to be sure, the bank had not the balance, actually in their hands, nor did they actually assent to its passing into the hands of Johnston, but they might, by using due diligence, and by doing their duty to the surety, have obtained it, and'thus have had satisfaction pro tanto, on their judgment, from the proceeds of the real estate .of the real debtor, and it was their duty to have done this. The money thus obtained from the sale of the real estate of Johnston, on which the bank’s judgment, was a lien, was actually brought into Court. Johnston could not take it out of Court, but the bank could have done so, and if they did not, they must lose it, for having had the means of payment in their power, they could not pass them by and recover from a surety. The ievidence then offered by the plaintiff in error, was relevant, and ought.to have been received.
Judgment reversed and a venire de novo awarded.