36 Vt. 361 | Vt. | 1863
It appears from the exceptions that in 1853, the Woodstock Bank recovered a judgment against Daniel Tarbell and Solomon Downer ; that in the debt on which that judgment was obtained, Tarbell was the principal and Downer his surity; .that in May, 1854, the bank took out an execution on that judgment, and the same was put into the hands .of the plaintiff, Moore, as an officer to collect. This execution, by the direction, and for the benefit of said Downer, whom the bank permitted to control the execution for the purpose, was levied upon
The bank not having received payment upon the debt, brought a suit upon the original judgment against Tarbell and Downer, and a recovery was had therein at the December Term of the Windsor County Court in 1857, for the whole amount of their demand. On this judgment the bank took out an execution, put it into the hands of an officer .to collect, and caused it to be satisfied, in part by a levy .upon the real estate of said Downer, and the balance was paid by Downer to the officer, who received the same, discharged the execution in full, and returned it satisfied. It is conceded that after the property was replevied, it went into the hands of Tarbell and for his benefit, so that no claim to recover here, is based upon the liability of the plaintiff over to him, but the simple question presented is, as to the effect of the payment of the debt by Downer, and the full discharge of the claim by the bank, upon the right of the plaintiff to recover upon this bond for the benefit of Downer.
In discussing this question it must be borne in mind that this bond was based upon, grew out of, and its legal existence and vitality must depend upon the debt to the Woodstock Bank, and the proceedings that were instituted by the bank to enforce its collection and the liabilities that were created thereby. It has no separate and independent existence, and nothing else upon which it can stand. In the course of such proceedings the property of Tarbell was attached by the plaintiff and taken into his possession ; it was replevied and this bond was executed, conditioned for its return, in case a return was awarded. It became a money obligation only on a failure to return, and then stood in the hands of the plaintiff as & representation of the property and his
Does the fact that Downer paid the debt to the bank give him the right to call upon the plaintiff to account to him for this property or the avails of it? To accomplish such a result it is necessary that the original debt to the bank should be kept in existence in some form, and to such an extent as-that it may constitute a basis on which to sustain the lien created by the original attachment, for that' lien is the. whole foundation of this bond and the plaintiff’s right to recover upon it, as between him and the creditor; if that lien is extinguished the plaintiff cannot recover, as there is nothing else on which to base his liability or. sustain his right.
Can it be said that this debt has now any legal existence for any purpose, either as against Downer or Tarbell ? It is true Tarbell has not paid the debt, but a payment by either cancels the debt to the bank, and discharges both, and Tarbell is as effectually discharged from all obligation to the bank, as he would have been if he had paid the debt himself. The money was paid by Downer as a payment of the debt; it was received as such and the debt discharged. There was no agreement or under^
As this suit was commenced before the debt to the bank was paid, it is conceded that the plaintiff is entitled to nominal damages, but as the case was tried by jury, we can render no judgment therefor here.
Judgment of the county court reversed and case remanded.