On Petition foe a Rehearing.
Morris, C.— The Vincennes National Bank, one of the appellees, asks for a rehearing of this cause. The ground urged for a rehearing is thus stated in the petition:
“ The court erred in its opinion in the conclusion, that when a judgment is rendered against principals and sureties, andan execution against the property of the judgment defendants issued thereon, and the principals have personal property within the jurisdiction of the officer having the writ, on which it might *553be levied, and the same is returned with the consent of the. creditor, although no levy had been made, the sureties are released to the extent of the amount that might have been made by proceeding with the writ, and which can not afterward be made available.”
The counsel admit that the authorities are divided upon the above proposition, and that it is not without reason for its support, but they insist that the question is settled by the cases of Jerauld v. Trippet, 62 Ind. 122; Hogshead v. Williams, 55 Ind. 145; and Lamb v. Trippet, 64 Ind. 600.
The case of Hogshead v. Williams simply holds that the voluntary delay of a judgment plaintiff to take out execution on his judgment will not discharge the surety, though the principal judgment debtor had property out of which the judgment might have been satisfied had execution been issued. No lien had been acquired on the property of the principal debtor. It is the well settled law, and we know of no case to the contrary, that the creditor is not bound to active exertion to secure a lien upon the property of his principal debtor for the benefit of the surety. It is equally well settled, as a general rule, that, having secured such lien, the creditor is bound to retain it for the protection of the surety of his principal' debtor. Brandt on Suretyship, sections 370, 371 and 372.
Under the law of Indiana, the execution from the time the' officer receives it operates as a lien upon the personal property of the judgment debtor. By the issuing of the execution,, the creditor has secured a lien on the property of his principal debtor, and there is nothing unreasonable or unjust in requiring him to retain and render the lien thus acquired available.. To hold that the voluntary release of such a lien discharges; the surety to the extent that he is thereby injured, is supported alike by reason and the general principles of the law,, and affords the creditor no just cause of complaint.
But it is insisted that the case of Jerauld v. Trippet, supra, is this case, and that it decides the precise question here involved.
It is obvious that it was not so regarded by the distinguished! *554judge who prepared the opinion. He says that the question in that case was decided in the case of Hogshead v. Williams, supra. It is clear that he regarded the question as one of delay merely — no mention being made of the lien acquired by Ihe execution. The judge says:
“ In the case we are now considering, there was no agreement to extend the time of the levy. It was a mere indulgence that could be countermanded at any moment, not founded upon any consideration; it did not change the obligation, and was not binding upon any person.”
The creditor’s attorney told the officer not to levy the "writ. No lien was abandoned, though the property was sold by the principal debtor while the execution was in the hands ■of the officer. The court regarded the directions given to the ■officer by the creditor’s attorney as a mere delay, an indulgence which he might give his principal debtor without discharging his surety. In the case before us the lien acquired hy the execution was abandoned. The question is not considered in the cases referred to, and is not, therefore, concluded by them.
The case of Lamb v. Trippet is disposed of by the simple statement that the questions are the same as those decided in Jerauld v. Trippet.
We think that the better reason and the weight of authority support the conclusion reached in this case, and that the petition for a rehearing should be overruled.
Per Curiam. — Petition overruled.