Holmes v. Day

108 Mass. 563 | Mass. | 1871

Mobton, J.

If a judgment debtor, who has been arrested upon execution, and has entered into a recognizance with surety under the Gen. Sts. <?. 124, pays the judgment, the surety is thereby discharged. Payment of the judgment in full is a satisfaction for all damages for a breach of the recognizance, and no cause of action remains against the surety. In the case at bar, there were three joint judgment debtors; one of them was arrested on the execution, and entered into a recognizance, with the defendant as surety, and after a breach of the recognizance the other two paid the judgment in full. As a general rule, payment of a judgment by one of several joint debtors extinguishes the judgment as to all. Hnammatt v. Wyman, 9 Mass. 138. Brackett v. Winslow, 17 Mass. 153. Adams v. Drake, 11 Cush. 504. We think, in this case, the payment of the judgment by Maynard and Calef was a satisfaction, and extinguished the claim for damages against the defendant. ■ The doctrine of subrogation does not apply. Maynard and Calef, for whose benefit the suit is brought, and the defendant, were sureties for Day under different contracts. There was no privity of contract between them. We can see no reason for holding, as between these parties, that the liability of the defendant was principal and primary, and that of Maynard and Calef secondary. If the defendant had been compelled to pay this judgment under his recognizance, he would have had a claim, as strong as that now urged by Maynard and Calef, to be subrogated to the rights of the plaintiff, and to continue the judgment in force against them.

Judgment for the defendant.