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By the Court,

S. B. Strong, J.

The learned judge no doubt gave a wrong reason for his judgment. Mere delay will not discharge the surety, nor impair the right of subrogation.

The great, and in my opinion, insuperable difficulty in the plaintiff’s way is, that Henry PerLee by his interference discharged an ample security which Onderdonk had at the time for the payment of his judgment, and in enforcing which he might be deemed a trustee for the benefit of the indorsers on the note to him, according to their respective priorities. The controversy is between the representatives of Henry PerLee, an indorser, and Daniel Carpenter, a prior indorser of the note upon which Onderdonk, the last indorser, obtained his judgment. Daniel Carpenter was of course a surety to Henry PerLee for any amount which he might be compelled to pay on the note. Onderdonk’s judgment and execution were against the makers and all the indorsers of the note. The execution had been levied upon the personal property of the makers, sufficient to satisfy the *568amount of the judgment, and the sheriff to whom it Avas directed could, at the time when Henry PerLee paid him the money, have sold such property to satisfy the execution. Or, if the levy was insufficient, it was the fault of the sheriff, who knew of the existence of the property in his county before the time limited in the execution had expired, and he had become responsible for the debt. These facts were known to Henry PerLee when he paid the amount of the judgment. He Avas at the time residing with one of the makers of the note. By paying the money Henry PerLee released the lien under the levy, or the responsibility of the sheriff, either of which Avould, if enforced, have relieved Daniel Carpenter. ■ It would be inequitable to make him or his property responsible for the debt, under such circumstances.

[Kings General Term,January 2, 1855.

S. B. Strong, Rockwell and Dean, Justices.]

No objection has been raised to the affirmative relief granted to the defendants.

The judgment should be affirmed.

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