Hammock v. Baker

66 Ky. 208, 3 Bush 208, 1867 Ky. LEXIS 166

• Court: Court of Appeals of Kentucky
• Decided: February 5, 1867
• Status: Published

Opinion

CHIEF JUSTICE PETERS

delivered the opinion oe the court:

Cartmell, the creditor, certainly had the right to coerce the payment of his debt from R. H. Baker, the surety; but J. PI. Wright, the principal in the debt, was the party whose duty it was to pay it; and, after having obtained a judgment against him, the creditor might, with great propriety, use all lawful means to make him pay it, and thereby relieve the surety from the burden.

If judgment had been rendered against Wright, the principal, and Baker, the surety, at the same time, and the former.had replevied the debt, in which the latter had refused to join, he would certainly have been under no obligation to refund to the sureties in the replevin bond what they might have been compelled to pay. (Havens, &c., vs. Foudry, &c., 4 Met., 247, and authorities cited.)

And, although Baker may have replevied the debt by a separate bond, still, as the creditor thought it best to make the debt out of the principal and his sureties on the bond executed by them, the principle is not changed, and Baker is not responsible to the sureties in the bond of Wright. He was not jointly bound with them as a co-surety, and they incurred no debt or responsibility for him or on his account.

Wherefore, the judgment is affirmed.