delivered the opinion of the court.
This ease comes up here on appeal from the refusal of the court below to quash an execution issued at the instance and to the use of one Albin, to whom (he being the surety of Ayers, who was insolvent, and the co-surety of Sherwood the defendant) was assigned, upon its being paid in full, a judgment recovered by the plaintiff, Hull, against Ayres, Albin and Sherwood.
The motion was filed by the defendant , and ought to have prevailed regardless of the intention with which the assignment of the judgment to the co-surety was procured. Hammatt vs. Wyman, 9 Mass., 138; Brackett vs. Winslow, 17 Id., 154; Harbeck vs. Vanderbilt, 20 N. Y., 395, fully support this view; and our.own decisions, so far as they go, do not militate against it.
This proceeding was a purely legal one, conducted in a summary manner, without the formalities of pleading, in which it was. impossible to invoke the equitable doctrines of substitution or subrogation.
After Hull had received payment of his debt he could not have successfully sued out an execution; and for the same reason, it was beyond his power.to authorize any one else to do so, under any pretext, in his name.
As to what would be the right of Albin in another form of procedure, it would be dehors this record to determine.
Judgment reversed and cause remanded;