Majority
p. 652Ontario Bank vs. Walker and others.
Headnote
Where a judgment was recovered and execution issued against the maker and several endorsers of a note, among whom was R, a mere accommodation endorser, who paid the judgment; held, that the court had no power to permit R to sue out execution against the parties to the judgment who stood prior to him on the note. jA surety who pays a judgment recovered against him and his .principa], is entitle^ in equity, to be subrogated to the creditor’s means of enforcing collection; but, at law, the payment extinguishes the judgment, and the surety’s only remedy is by a suit and recovery over.
Subrogation. The action was on a note made by F. W. Walker, payable to the order of M. Walker,, and en
p. 653
dorsed successively, 1st by M, Walker, 2d by I, Harris,' 3d by S. B. Roberts, and 4th by A, Blair. Judgment having been obtained against all these parties, and execution issued, Roberts paid the money to the sheriff, after the latter had seized his (Roberts’) personal property,
A motion was now made, in behalf of Roberts, that he be permitted to sue out execution on the judgment against the parties on the note who stood prior to him. His affidavit was produced, that he was a mere accommodation endorser. He added, that he had commenced a suit against the prior parties, which was defended.
Stryker fy Comstock, for the motion.
----, contra.
If Roberts be a surety, he may perhaps, on showing a proper case, be substituted by chancery in the place of the bank, and allowed to-take the remedy he now asks at our hands. In law, however, the judgment is extinguished by the,payment; and he can only have a suit to recover over against the prior parties. The very reason why chancery performs the office of subrogation, in favor of a surety who has paid, is, because, the debt being extinguished, a court of law cannot do it.
Motion denied.[1]
(a) (a) The dictum of Mercy, J. in The New York State Bank v. Fletcher, (5 Wendell, 85, 89,) must therefore, it seems, be understood in reference mainly to the powers of chancery.