[84]*84The opinion of the court was delivered by
Redfield, J.
This case has been very long before the court in this State, — in one form or another for more than twenty years.
It does not seem to the court to be a case, in regard to which there is any very great difficulty. The embarrassment in the case seems always to have arisen, from making this defendant liable for the acts of Ed ward Pierson, after the judgment was assigned to him by order of the court, which gave the defendant judgment for the balance of the debt against Edward, as the bail of Uzal Pierson,-the elder, who was at that time treated as and supposed to be the surety of the other two.
It is now too late to inquire, whether the county court decided according to the rules of the English common law, in making a subrogation of the surety to the rights of the creditor, or whether the court of chancery decided according to the fact, in treating this plaintiff as a co-principal with his brother John, and Uzal Pierson, the elder, as their surety, and thus refusing the injunction upon Edward’s suit. Those questions have been decided by courts of competent jurisdiction, from whose determination, in one case, no appeal could be taken, and, what is in effect the same thing, in the other none was taken ; and those decisions are conclusive upon all the parties and privies thereto. Any attempt to reconsider those cases in a collateral way would be contrary to the soundest principles of law and of justice; and it is only by such a course, that the plaintiff can even hope to succeed in this action. The verdict in the county court, in favor of the plaintiff, went upon the express ground of Uzal Pierson, senior, being a co-principal, instead of a surety for Uzal Pierson, Jr., and John Pierson; and the court expressly held in Pierson v. Catlin et al., 3 Vt. 272, that, upon that fact being proved, they would grant the injunction ; and the cause was ultimately decided against the plaintiff upon the ground of the failure of his proof to establish that point. The plaintiff now asks [85]*85for a verdict, upon the ground that he has proved that fact in this action. And the fact, that Edward Pierson was, for conformity, joined in that action, we do not think will make the decision any less binding upon the other parties to the action, who were in fact the real parties.
But we do not deem it necessary to go into a consideration of these questions. The only important question, it seems to us, is, whether the act of Edward Pierson, in enforcing collection of that judgment of this plaintiff, is to be considered the act of this defendant. If so, the plaintiff is undoubtedly entitled to recover ; if not, there is no pretence of any right of action against the defendant. It is not argued, that the defendant was in fault, in enforcing collection of the debt against Edward Pierson, as the bail of Uzal Pierson, senior. This he was expected to do, by the terms of his contract. Had that payment been made by Edward, without the substitution made in the county court, it would have operated to discharge the original judgment. Allen v. Ogden et al., 12 Vt. 9.
But we do not think that this formal order of substitution, made by the county.court in invitum, so far as the defendant was concerned, could make him responsible for every or any act, which Edward should commit under, the shield of its protection. This substitution was, indeed, a matter, which, by our law, the court had no power to order. In doing so they were, in fact, enforcing the law of Justinian, instead of that of this state. For although, in a court of equity, the surety, who pays the debt, may be substituted to all the rights of the creditor, which are collateral to the main contract, yet he cannot even there, as a general rule, be put in the place of the creditor in the principal contract; for, by the payment, that is discharged; and in any action brought upon it the other debtors may rely upon that payment in discharge. Allen v. Ogden, 12 Vt. 9. 1 Story’s Eq. 477, § 499 b. and notes. Copis v. Middleton, 1 Turn. & Russell 224, [11 Cond. Eng. Ch. R. 128,] where the law is very fully discussed by Lord Chancellor Eldon, and undoubtedly put upon its true ground. Nor does the opinion of Lord Chancellor Brougham in Hodgson v. Shaw, 3 Mylne & Keen, 183, [8 Cond. Eng. Ch. R. 338] essentially differ from the doctrines laid down by Lord Eldon, but in the main confirms them; bo that the decision of the county court, in making this substitution, [86]*86was, in effect, establishing in this State the Beneficium cedendarum actionum of the Institutes 3, 21, 4. But of this it is now too late to complain. Some of the earlier English cases go very nearly the same extent here required. Parsons v. Briddock, 2 Vern. 608; and see Wright v. Morley, 11 Ves. 12, before Sir William Grant, Master of the Rolls. But it must be confessed, the more recent cases hardly justify a court of equity, even, in decreeing a substitution of the surety in the place of the creditor, after a payment of the original contract, except as to collateral means of enforcing the payment, which were within the power of the creditor, but which he did not see fit to exercise, and which could not otherwise be made available for the benefit of the surety.
But, however this may be, it is very certain, that the surety could not, by the subrogation, acquire any greater rights, than the creditor had. So that, if the creditor had, by a legal contract, bound himself not to collect more than one moiety of this plaintiff, the person taking it by substitution must take it subject to this infirmity ; and so it seems the plaintiff viewed the matter, when he brought his suit in equity for an injunction ; and so that court held, — but refused the injunction, upon the ground that Edward, standing in the place of Uzal Pierson, senior, and thus being a virtual surety for the plaintiff and John Pierson, was entitled to enforce the claim against either. But against this the defendant’s contract not to sue the plaintiff did not and was not intended to provide. By its very terms he was to collect the amount of the judgment of either of the other signers ; and this plaintiff took the risk of that operating, in a circuitous manner, to compel him to pay it. The plaintiff attempted, but wholly failed, to prove any contract of indemnity.
And if this action can now be maintained, the defendant will thus be deprived of one of the very advantages stipulated for in his contract. If this plaintiff, being, in fact, either a surety for John Pier-son and Uzal Pierson, senior, or a co-principal with them, has suffered injustice, to a greater or less extent as he might have sustained either the one or the other of those relations, in consequence of being treated as a co-principal with John Pierson, and thus bound tore-imburse Uzal Pierson, senior, or his bail, to the full extent of any payment made by them, it has been without the fault of the defendant and wholly beyond his control. The defendant having [87]
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[84]*84The opinion of the court was delivered by
Redfield, J.
This case has been very long before the court in this State, — in one form or another for more than twenty years.
It does not seem to the court to be a case, in regard to which there is any very great difficulty. The embarrassment in the case seems always to have arisen, from making this defendant liable for the acts of Ed ward Pierson, after the judgment was assigned to him by order of the court, which gave the defendant judgment for the balance of the debt against Edward, as the bail of Uzal Pierson,-the elder, who was at that time treated as and supposed to be the surety of the other two.
It is now too late to inquire, whether the county court decided according to the rules of the English common law, in making a subrogation of the surety to the rights of the creditor, or whether the court of chancery decided according to the fact, in treating this plaintiff as a co-principal with his brother John, and Uzal Pierson, the elder, as their surety, and thus refusing the injunction upon Edward’s suit. Those questions have been decided by courts of competent jurisdiction, from whose determination, in one case, no appeal could be taken, and, what is in effect the same thing, in the other none was taken ; and those decisions are conclusive upon all the parties and privies thereto. Any attempt to reconsider those cases in a collateral way would be contrary to the soundest principles of law and of justice; and it is only by such a course, that the plaintiff can even hope to succeed in this action. The verdict in the county court, in favor of the plaintiff, went upon the express ground of Uzal Pierson, senior, being a co-principal, instead of a surety for Uzal Pierson, Jr., and John Pierson; and the court expressly held in Pierson v. Catlin et al., 3 Vt. 272, that, upon that fact being proved, they would grant the injunction ; and the cause was ultimately decided against the plaintiff upon the ground of the failure of his proof to establish that point. The plaintiff now asks [85]*85for a verdict, upon the ground that he has proved that fact in this action. And the fact, that Edward Pierson was, for conformity, joined in that action, we do not think will make the decision any less binding upon the other parties to the action, who were in fact the real parties.
But we do not deem it necessary to go into a consideration of these questions. The only important question, it seems to us, is, whether the act of Edward Pierson, in enforcing collection of that judgment of this plaintiff, is to be considered the act of this defendant. If so, the plaintiff is undoubtedly entitled to recover ; if not, there is no pretence of any right of action against the defendant. It is not argued, that the defendant was in fault, in enforcing collection of the debt against Edward Pierson, as the bail of Uzal Pierson, senior. This he was expected to do, by the terms of his contract. Had that payment been made by Edward, without the substitution made in the county court, it would have operated to discharge the original judgment. Allen v. Ogden et al., 12 Vt. 9.
But we do not think that this formal order of substitution, made by the county.court in invitum, so far as the defendant was concerned, could make him responsible for every or any act, which Edward should commit under, the shield of its protection. This substitution was, indeed, a matter, which, by our law, the court had no power to order. In doing so they were, in fact, enforcing the law of Justinian, instead of that of this state. For although, in a court of equity, the surety, who pays the debt, may be substituted to all the rights of the creditor, which are collateral to the main contract, yet he cannot even there, as a general rule, be put in the place of the creditor in the principal contract; for, by the payment, that is discharged; and in any action brought upon it the other debtors may rely upon that payment in discharge. Allen v. Ogden, 12 Vt. 9. 1 Story’s Eq. 477, § 499 b. and notes. Copis v. Middleton, 1 Turn. & Russell 224, [11 Cond. Eng. Ch. R. 128,] where the law is very fully discussed by Lord Chancellor Eldon, and undoubtedly put upon its true ground. Nor does the opinion of Lord Chancellor Brougham in Hodgson v. Shaw, 3 Mylne & Keen, 183, [8 Cond. Eng. Ch. R. 338] essentially differ from the doctrines laid down by Lord Eldon, but in the main confirms them; bo that the decision of the county court, in making this substitution, [86]*86was, in effect, establishing in this State the Beneficium cedendarum actionum of the Institutes 3, 21, 4. But of this it is now too late to complain. Some of the earlier English cases go very nearly the same extent here required. Parsons v. Briddock, 2 Vern. 608; and see Wright v. Morley, 11 Ves. 12, before Sir William Grant, Master of the Rolls. But it must be confessed, the more recent cases hardly justify a court of equity, even, in decreeing a substitution of the surety in the place of the creditor, after a payment of the original contract, except as to collateral means of enforcing the payment, which were within the power of the creditor, but which he did not see fit to exercise, and which could not otherwise be made available for the benefit of the surety.
But, however this may be, it is very certain, that the surety could not, by the subrogation, acquire any greater rights, than the creditor had. So that, if the creditor had, by a legal contract, bound himself not to collect more than one moiety of this plaintiff, the person taking it by substitution must take it subject to this infirmity ; and so it seems the plaintiff viewed the matter, when he brought his suit in equity for an injunction ; and so that court held, — but refused the injunction, upon the ground that Edward, standing in the place of Uzal Pierson, senior, and thus being a virtual surety for the plaintiff and John Pierson, was entitled to enforce the claim against either. But against this the defendant’s contract not to sue the plaintiff did not and was not intended to provide. By its very terms he was to collect the amount of the judgment of either of the other signers ; and this plaintiff took the risk of that operating, in a circuitous manner, to compel him to pay it. The plaintiff attempted, but wholly failed, to prove any contract of indemnity.
And if this action can now be maintained, the defendant will thus be deprived of one of the very advantages stipulated for in his contract. If this plaintiff, being, in fact, either a surety for John Pier-son and Uzal Pierson, senior, or a co-principal with them, has suffered injustice, to a greater or less extent as he might have sustained either the one or the other of those relations, in consequence of being treated as a co-principal with John Pierson, and thus bound tore-imburse Uzal Pierson, senior, or his bail, to the full extent of any payment made by them, it has been without the fault of the defendant and wholly beyond his control. The defendant having [87]*87done no more than he had a right to do, and the demand having been taken out of his control by order of court, and this known to the plaintiff, he could only seek his redress against Edward, for any unlawful use of the judgment, — which was sought, indeed, in the only place whore it could be enforced, and failed for want of proof. Pierson v. Catlin et al., 3 Vt. 272, and the same case subsequently decided by this court, but not reported.
The deposition of Dorcas Pierson was correctly received in evidence on the trial. When it is certified, that a deponent is unable to travel and attend court “ by reason of age and bodily infirmity,” although at a former term of the court, the disability should be treated as a continuing one, unless the contrary be shown by the opposite party. All causes for taking depositions may he, more or less, temporary, — as living more than thirty miles from the place of trial, going out of the State and not-to return before trial, — but a deposition once taken for any such continuing disability should be received, until the removal of the cause be shown by the opposite party.
Judgment reversed and cause remanded.
See Pierson v. Catlin et al., 3 Vt. 272.