27 Vt. 584 | Vt. | 1855
The opinion of the court was delivered by
We think the declaration is defective on this demurrer. The subject matter of the complaint is not a proper matter for relief at law. If the party is entitled to any relief, his appropriate remedy is in equity. It is admitted by the demurrer that the plaintiff signed the note as surety, and that the other signers were principals; that the note was sued, and the property of the principals attached, sufficient to secure the debt, and save the plaintiff harmless as surety. It is also stated that the property has been released from that attachment by the neglect of the bank to charge the same in execution. If the principals have become insolvent, and the execution is now levied on the property of the defendant, it is not a matter for the interference of a court of law. In the case of Marshall v. Aiken, 25 Vt. 328, it was held, “ that a “ judgment upon a note operates as a merger of the note, and at “ law it becomes so far conclusive upon the parties to it, as to “ exclude a defense growing out of the relation of principal and “ surety.” This subject is examined and the authorities collected in 3 Lead. Cas. in Eq., 382. Whether a court of equity would grant relief, under the circumstances of this case, we express no opinion, as the question is not properly before us. The case referred to is an authority that this remedy at law cannot be resorted to upon the matters stated in the declaration.
We think, also, that all those persons against whom that execution issued, should have been made parties to this prosecution, as plaintiffs. The writ of audita querela is a judicial writ, and must,