Russell v. Perry

The only question necessary to be examined in this case relates to the alleged interest of the defendant Perry in the cause in which, as a magistrate, ho rendered judgment against the plaintiff. If the tendency of a judgment, fixing the plaintiff’s liability to refund to Fisher the money he had disbursed beyond his portion as one of the sureties of Smith, had been to relieve the magistrate Perry of any part of his burden or liability, the affirmative of the question would readily be established. But it appears by the case that Perry had already paid his portion, and had been discharged of all further liability to Fisher, and it had especially been arranged that the failure of Fisher to collect any thing of Russell should not disturb the settlement that had already been made among the parties. The agreement was that Fisher should look to the plaintiff' for his share, and if he did not succeed in obtaining that share, he should not call on. the other sureties to supply the deficiency. The form and. *102reasonable construction of that agreement were such, as it seems to us, that it should make no difference to the parties to it whether the failure to obtain the share of Russell should be owing to his insolvency or his exemption from actual liability, for any cause, to contribute as surety with the others. All the co-sureties, excepting Russell, compounded the claim of Fisher against each of them severally by paying him a sum agreed on, which was not to be varied by any subsequent event.

¥e are therefore of the opinion that the magistrate had no interest in the cause, from the facts shown, that should have precluded him from acting as such. The verdict in the case seems therefore well founded ; and there must be

Judgment for the defendant upon the verdict.