#### HENRY SAMUEL vs. WILLIAM ZACHERY.

A venditioni exponas to sell lands, tested after the defendant in the execution had died, without any scire facias against the heirs, is null and void.

In a court of law, each surety is responsible to his co-surety for an aliquot proportion of the money for which they were bound, ascertained by the number of sureties merely, without .regard to the insolvency of any one or more of the co-sureties. In a court of equity the rule is different.

The cases of Borden v McKinnie, 4 Hawks, 279- Seawell v Cape Fear Manic, 3 Dev. Rep. 279. Tarhinton v Alexander, 2 Dev. & Bat. 87, and Frost v Etheridge, 1 Dev. 30, cited and approved.

Appeal from the Superior Court of Law of Surry county, at the Spring Term, 1844, his Honor Judge Battle presiding.

This was an action of assumpsit, brought to recover from the dejendant his proportional part of a sum paid by the plaintiff, as a co-surety for one Shelton. Besides the plaintiff and defendant, three other persons were sureties for the said Shelton, all of whom, as well as the estate of Shelton, were insolvent when this suit was commenced. A suit had been brought, and judgment obtained by the Bank of Cape Fear, against the principal and all the sureties, and a fi.fa. *378issued thereon had been levied on certain real estate of the principal, but returned without a sale; whereupon, from the same term, to which this fi.fa. was returnable, a venditioni exponas was issued, commanding a sale of the said property. After the teste and before the term to which the fi.fa. was returnable, Shelton, the defendant in the execution, died. The venditioni, under which the land was sold, was tested after the death of Shelton, and no scire facias had issued against his heirs, though there had been no intermission in the series of executions. This execution was in the hands of the plaintiff in this suit, who was then the deputy sheriff, and who also had in his hands an execution against the same defendant in favor of one Humphreys, of a leste later than that of the original fi.fa. above spoken of but prior to the venditioni exponas, under which the land was sold. The agent of the said Humphreys bid off the tract of land, at the sale under the venditioni for the sum of g>380, and claimed to have that bid applied to the satisfaction of his execution. This was objected to by the plaintiff, Samuel, but, on a reference of the matter to counsel and their advice, it was agreed to. The agent of Humphreys, however, having-ascertained that the land was not worth the amount oí his bid, agreed to assign it to the plaintiff, Samuel, for the sum of f>150, which was accordingly done; and no part of the price of this land was applied to the payment of the execution, in which the present plaintiff and defendant were interested. It was not shewn whether a credit for the price of the said land had been given on Humphrey’s execution, or that satisfaction had been entered thereon.

The defendant’s counsel contended, that the execution against Shelton and the present plaintiff and the defendant and others was entitled to a' credit for the whole, or at least a part, of the price of this land. But the court instructed the jury, that the sale of the land was void, and, if it were not, the appropriation of it by th&-plaintiff, Samuel, as deputy sheriff, to the Humphreys’ execution, could not be objected to by the present defendant in this action, and that the present plaintiff, having in fact paid the execution out of his own *379money, was entitled to receive his proportional part from the defendant. The counsel then objected, that the plaintiff could only recover a fifth part of what he had paid, that be-*ng his aliquot proportion according to the number of sureties; but the court held, that, as the other co-sureties wdre insolvent, he could recover one half. The jury, under these instructions, found a verdict for the plaintiff for one half of the amount he had paid. Judgment being rendered pursu* ant to this verdict, the defendant appealed.

No counsel appeared in this court for either party.

Daniel, J.

On the first point in the cause we concur with his Honor. The fieri facias in favor of the Bank, which was the first in turn, had been levied by the sheriff on the land of Shelton in his lifetime, and, although it was not sold under that fi. fa., it still remained in custodia legis at the death of Shelton, and descended to his heirs cum onere. The 'venditioni in favor of the bank, which issued from the term, to which the fi. fa. had been returned) was not to authorize a levy, but to compel a sale of the land Which had been previously levied on under the fi. fa. Bowen v McCullock, No. Ca. Term Rep. 261. That issuing the venditioni would have been the proper mode of proceeding by the bank, to have the land subjected to the satisfaction of its debt, in case Shelton had been alive, is established by several cases. Borden v McKinnie, 4 Hawks 279. Seawell v Cape Fear Bank, 3 Dev. 239. Tarkinton v Alexander, 2 Dev. & Bat. 87. The circumstance of the death of Shelton, after his land had been thus levied on, for the satisfaction of the bank debt, does, we think, alter the case. The heir of Shelton might have a debt against his ancestors, standing in equal degree, in all its circumstances, with the bank debt. The law, in such a case, would permit him to retain the real assets, to satisfy himself first: the heir may have paid the bank debt, or paid other executions against the land, in iavor of other creditors, of a prior teste. The widow of Shelton (if he left one) was entitled to dower in the land, although it had been levied on by the sheriff *380under the ft. fa. Frost v Etheridge, 1 Dev. 30; the heir might and ought to assign her the dower, by metes and bounds in the land. The reversion, it is tine, would be subject to the venditioni ; but it seems to us, the heir should have a day in court, for the purpose ot shewing all or any of these things. We know ot no adjudication in the State courts on the subject; but we take it that the venditioni was void, which issued at the instance of the bank, on the said levy, without a scire facias to the heirs. Of course the case is different with regard to personal property levied on in the lifetime of the original defendant.

We think, however, the Judge erred in his charge on the second point. In a court of law, each surety is responsible to his co-surety for an aliquot proportion of the money, for which they were bound, ascertained by the number of sureties merely, without regard to the insolvency of any one or more of the co-sureties. In equity it is different. Powell v Matthis, 4 Ired. 83, where all' the authorities are cited, and the difference of the rule in the two courts explained.

Per Curiam. New trial awarded.