Prescott v. Perkins

It does not appear whether the goods attached were at the time the property of Odióme or the plaintiff. They had belonged to Odiorne, who was principal on the first note.

Nor does it appear at whose request the defendant receipted the goods; nor, by any express evidence, at whose request he signed the note.

*310The goods having been receipted for, went into the hands of Odiorne or the plaintiff. They were sold by Odiorne to the plaintiff before or after the attachment.

The plaintiff’ can not treat the attachment as a satisfaction of the debt, or as a release of himself. Bank v. Hallet, 8 Cowen 192. If there had been a levy of the goods of Odiorne upon an execution, as in the cases cited by the defendant’s counsel, it might have some effect. A levy of an execution upon the property of the debtor, sufficient to satisfy the judgment, may operate to discharge it. But there is no pretence that an attachment upon mesne process has any such operation. The plaintiff’, with Odiorne and Hanson, still remained liable. There was a judgment against him. He could not have defended the suit.

The creditors, Bartlett and others, were not bound to follow up the attachment. Page v. Webster, 15 Maine 249. They did however so far as to obtain a judgment against the defendant on his receipt. They might then have resorted to either execution for payment. But on the state of facts thus far, if the plaintiff had paid, he could not have resorted to the defendant for contribution. The defendant was not by means of the receipt a co-surety with him; and if the defendant had been obliged to pay, he could not have resorted to the plain-tiff as a principal, except upon showing that the goods attached were his, or-that the defendant became receipter at his request. Cases are not unfrequent where two persons, liable collaterally or as sureties, have no remedy against each other. Harris v. Warner, 13 Wend. 400; Elmendorph v. Tappen, 5 Johns. 176.

The sale of the goods by Odiorne to the plaintiff, if after the receipt, would not change the relations of the plaintiff and defendant so as to make the former a principal.

As the plaintiff was originally.liable on the first note *311as a surety, as that was the primary liability (for the attachment was only another security taken by the creditors), and as the money was raised from the bank to pay that debt, if the parties to the note to the bank had signed without any designation of their character as principal and surety, perhaps the defendant might well have concluded that he was in fact a surety for those who signed the first note, notwithstanding there was a judgment against him on the receipt; that judgment being a secondary collateral security. The case finds that the money was raised to pay the judgment against the signers of the first note, and if there had been no evidence at 'whose request the defendant signed, it might perhaps be inferred that he signed as surety for all those who were originally liable, notwithstanding some of them were sureties. It has been held that there must be something to show a contract establishing the relation of principal and surety. Harris v. Warner, 13 Wend. 400!

But any question on this subject seems to be set at rest by the note itself made to the bank, in which Odiorne is described as principal and all the others as co-sureties. This, under the circumstances, without explanation, seems to bo conclusive evidence that the debt was, to the last, treated as the debt of Odiorne; and that the defendant became a co-surety with the plaintiff and Hanson at Odiorne’s request. The cases Lapham v. Barnes, 2 Vt. 213 ; Warner v. Price, 3 Wend. 897, and Beaman v. Blanchard, 4 Wend. 432, are strong cases to show that the defendant can not claim to be surety for all the others. Regarding him as co-surety he is liable to contribute, and there must be a

New trial.