Marshall v. Macy

10 Abb. N. Cas. 87

Opinion

Barrett, J.

I have examined the papers and think restitution should be ordered. There was no necessity for a demand, and I find no provision of law requiring it. As to the other point, I think the judgment in theory of law was paid by the defendants. It was as though the principal, Mr. Dambman, had furnished the defendants (his sureties) with the means of satisfying the judgment; he necessarily paid it for them and on their behalf. His going direct to the plaintiffs’ attorney changed nothing. The judgment' against the defendants was not purchased by or assigned to him. It was paid and satisfied of record. That is the essential thing; the method was immaterial.

Dambman has no resort or remedy against the plaintiffs. If the defendants, upon the consummation of the restitution, repay Dambman, that is a matter between themselves and him, with which plaintiffs have nothing to do.

Davis, P. J., and Beady, J., concurred..