3. Injunction.

4. Attachment

Hoge & Robb agt. Page and others.

5. Provisional remedies.

The sheriff, under this attachment against these non-resident debtors, is entitled to receive the same fees, &c, he would for like services under chapter 5, title 1, part 2, of the Revised Statutes.

The services in that part of the Revised Statutes which are like those performed by the sheriff in this case, will be found at 2 R. S. 3, §§ 1-12, and relate to attachments against absent, concealed, and non-resident debtors.

The compensation of the sheriff for his services under those provisions of the Revised Statutes is provided for at 2 R. S. 646; which provision is in these words:

"For serving an attachment against the property of a debtor under the provisions of chapter 5 of the 2d part, or against a ship or vessel, under the provisions of the 8th title of chapter 8 of part 3d, fifty cents, with such additional compensation for his trouble and expenses in taking possession of and preserving the property attached, as the officer issuing the warrant shall certify to be reasonable. And when the property so attached shall afterwards be sold by the sheriff, he shall be entitled to the same poundage in the sum collected as if the sale had been made under an execution."

There is nothing in the laws of 1850, (p. 404,) amending the Revised Statutes, which affects in any respect the question as to the poundage here charged..

A slight examination of the several sections above cited will show that the sheriff cannot, under an attachment, charge poundage in any case, except when the property attached is actually sold. After levying under his attachment, he is to receive fifty cents, and "such additional compensation for his trouble and expenses in taking possession of, and preserving the property, as the officer issuing the warrant shall certify to be reasonable."

This being done, he receives nothing further unless the "property so attached shall afterwards be sold by him," in

Alden agt. Clark, Tifft, and Bradley.

which case he is entitled to receive the same poundage as on moneys collected on execution.

The proper course, therefore, for the sheriff to pursue, after making his levy under an attachment, is to apply to the officer issuing it to fix the amount of compensation, for his trouble and expenses in taking possession of, and preserving the property attached. That compensation the sheriff is entitled to receive as soon as it is fixed, whether the plaintiff proceeds further in the suit or not, and without waiting the determination of the action. If, after this, the property shall still be sold, the sheriff is then entitled, over and beyond what the officer issuing the warrant has allowed him, to receive his poundage on the amount collected by such sale.

In this case, there having been no sale, the sheriff is not entitled to poundage. He must apply to the officer who issued the warrant, to fix the amount he is entitled to receive. An order will be made to that effect.

SUPREME COURT.

JOHN ALDEN agt. ANSON CLARK, HENRY TIFFT, and GEORGE BRADLEY.

On a judgment against principal and surety, the surety may pay the plaintiff the amount of the judgment, and take an assignment of it to himself, and enforce it against the principal. Such payment, being now construed as made in equity, does not satisfy or extinguish the judgment as to the principal. The writ of scire facias, both as a public and private remedy, is entirely abolished by the Code.

In no case, whether more than five years have elapsed or not, since the rendition of the judgment, should execution be permitted to issue, against the property of a deceased judgment debtor, under the act of 1850, chapter 295, without leave of the court, upon due notice.

Such application should be upon affidavit, setting forth all the facts, together VOL. XI.

14

Alden agt. Clark, Tifft, and Bradley.

with the surrogate's permission. An order should be made for all persons interested in the estate to show cause, at a special term, why execution should not issue; and also directing how, and on whom, such order should be served. (Code, § 284.)

Sandy Hill General Term, January, 1855.

HAND, CADY, ALLEN and JAMES, Justices.

APPEAL from an order of the Washington county special term, on a motion for leave to issue execution against the estate of a deceased judgment debtor.

The plaintiff, Alden, in 1847, obtained a judgment in the supreme court against all the above-named defendants, upon a note made by Clark, and signed by the others as sureties for his benefit. (After judgment and execution, Tifft and Bradley paid plaintiff the amount of the judgment, and took an assignment to Bradley.) After the judgment, and about seven years since, Clark died, leaving real estate. Bradley (the assignee) now moves, on the original judgment, for leave to issue execution against Clark, under the act of 1850, (chapter 295,) that he may enforce the same against his real estate.

The motion papers show that no letters of administration or testamentary had been issued upon Clark's estate, nor had any permission been granted for an execution to issue by the surragate. Notice of this motion was also served without any order or direction from the court.

A. D. WAIT, for motion.

HUGHS & NORTHRUP, opposed.

By the court-JAMES, Justice. In the consideration of this motion several important questions arise.

The first is, whether the judgment upon which this motion. is founded was not satisfied and extinguished by payment of its amount to the plaintiff, and his assignment and transfer thereof to one of the defendants.

Formerly, the payment of a judgment to the plaintiff, by one of several co-defendants, operated, at law, to satisfy and extinguish such judgment; and an assignment of the same to one of several co-defendants produced the same result. In equity,

Alden agt. Clark, Tifft, and Bradley.

however, the rule was different, and that rule has been adopted by our supreme court, under its present organization and union of law and equity powers. This rule was applied by the court of this district in Corey agt. White, (3 Barb. Rep. 12,) in a case where judgment had been rendered against maker and endorser under the act of 1832-the endorser having purchased the judgment, and taken an assignment of it in his own name. Also in the third district, in the case of Goodyear agt. Watson, (14 Barb. 481.) It was there held that a surety, paying a judgment rendered against himself and principal, and taking an assignment to himself, did not satisfy or extinguish the judgment as against the principal. This doctrine proceeds upon the principle that the relation of principal and surety exists, and continues after judgment; and that payment by the surety entitles him to be subrogated to all the rights and remedies possessed by the creditor against the principal debtor.

In this case there is no dispute about the facts. It is conceded that Clark was the principal debtor, and Tifft and Bradley but sureties; and it is not claimed that Clark has ever paid or satisfied any part of the debt. The sureties have satisfied the plaintiff, and taken an assignment of the judgment to themselves. If it is permitted to stand, they may be able to indemnify themselves; if not, they may be remediless. To hold it valid, would protect right, promote justice, and prevent circuity of action, and wrong no one. The case cannot be distinguished, in principle, from those of Corey agt. White, and Goodyear agt. Watson. For these reasons, I think the equity rule should prevail, and the judgment held valid and subsisting against the estate of Clark, capable of being enforced in the hands of the sureties, the same as if owned by the original plaintiff.

The next question presented for consideration, is the right to issue the execution asked for upon motion.

Before the Code, in case of the death of a debtor, after final judgment, the mode of proceeding was by scire facias. Has that remedy been abolished? Section 428 of the Code so declares, and provides that the remedies heretofore obtainable in

Alden agt. Clark, Tifft, and Bradley.

that form may be obtained by civil action under the provisions of that chapter. It is however insisted, that § 428 only abolishes the writ as a public remedy; and the language of the section, the reference to the other provisions of the chapter, and the character of those provisions, go far to sustain that view. But Justice MARVIN, in Cameron agt. Young, (6 How. 372,) held, that as a scire facias was an action, it was abolished by § 69 of the Code, in which decision I fully concur. That a scire facias was an action, is sustained by Co. Lit. 290, b, 291; Wils. Rep. 251; 1 Tenn. Rep. 267; and 2 Tenn. Rep. 46. It could be pleaded to the same as another action; and a release of all actions was held a bar to the writ.

It was properly an action of record. It was either of a private or a public nature. As a private remedy it was incidental to other actions-being founded upon matter of record in such actions. It lay, 1st, To have execution, or for some other purpose, as between the original parties. 2d. To have execution against bail, who had become liable for the debt of their principal. 3d. Upon judgment upon the introduction of new parties; either when a party dies after interlocutory judgment, for an assessment and judgment; or to have execution on final judgment when new parties were introduced, by death, marriage, or other event.

Since the Code, it has been several times held that the writ of scire facias, to obtain execution on a judgment when both parties are living, is entirely suspended by the Code; (Catskill Bank agt. Sanford, 4 How. 100, 101;) and there seems to be no doubt but §§ 283, 284 of the Code, were intended as a substitute for the writ of scire facias in such cases, where the right to issue execution had been lost by the lapse of time.

A scire facias to obtain execution when a defendant died after final judgment, and before execution, seems also to have. been swept out of existence by § 69. Section 71 declares, that no action shall be brought upon a judgment of a court of record between the same parties without leave of the court; but, as appears by the codifiers' notes, chapter 2 of title 12, part 2, of the Code, § 376, &c., was enacted to give a remedy