Burns v. Huntingdon Bank ex rel. Geissinger

1 Pen. & W. 395

Opinion

The opinion of the court was delivered by

Gibson, C. J.

It seems the bank is satisfied, and the question is between Geissinger, who actually paid the debt of Burns, and Roth-rock and Robijisop,, who were bound by recognizance and judgr ment to pay it. As against Burns, in relation to whom Geissinger stood as a surety, t,he ease would b,e clear; but it is said that as against Rothrock and Robinson, who also stand in the relation of sureties, and not in privity with Geissinger, there .is not the same equity. Privity is perhaps essential to a claim for contribution, but it is certainly not indispensible to the right of subrogation; of which Parsons v. Briddock, 2 Vern. 608, is an emphatic instance. There, a judgment against bail in an action on the several bond of the principal, was decreed to be assigned to the sureties who had, in the meantime, been compelled by ,an action on the same bond, to pay the debt. Yet there was noprivity; and although both parties stood in the relation of surety towards the principal, they nevertheless stood in unequal equity between themselves, because the bail had so identified himself with the principal as not to be distinguished from him. Nor ought they to be distinguished here, inasmuch as they interposed to procure a personal advantage to the principal, and to the detriment of the surety, who might perhaps, have been exonerated, had. the proceedings not been staid against the principal; and in this respect the case is rather stronger than Parsons v. Briddock. TJie bank being satisfied, there is therefore no doubt that Geissinger is to be substituted for the amount paid by him. On the other hand, there is as little doubt that a writ of error lies on an order like the present, which is in the nature of an award of execution, and which would otherwise leave a party jnjured by it, without remedy.

Order of the Common Pleas affirmed.