Sanderson v. Stevens

116 Mass. 133, 1874 Mass. LEXIS 43

• Court: Massachusetts Supreme Judicial Court
• Decided: October 8, 1874
• Status: Published

Opinion

Wells, J.

The statement of the case shows a breach of the bail bond. The only point raised by the exceptions is that the judgment was against Smith alone, whereas the writ upon which the arrest was made was against Smith and Colton.

There is nothing in the bond which limits it to a joint judgment, or indicates that it was given with any reference to the joint character of the suit. The objection, therefore, can only have force on the ground that the discontinuance against Colton was prejudicial to the rights of the sureties. This we think' cannot be maintained.

The discontinuance and separate judgment were authorized by the Gen. Sts. c. 126, § 14. It introduced' no new or greater liability, and neither made nor indicated any change in the nature of the claim which was the subject of the suit and judgment. -It did not affect the extent of Smith’s liability as principal debtor, nor the amount for which the sureties would be held responsible upon his default. Leonard v. Speidel, 104 Mass. 356.

If the sureties would be entitled to any claim against Colton for contribution, it would be by way of subrogation to the rights of their principal; and those would depend, not upon the judgment establishing a joint liability to third parties, but upon the state of accounts between themselves, including indeed the claim for which this judgment was rendered. Their rights in this direction, whatever they were, would not be enforced through the judgment, and are not defeated by reason of the discontinuance against Colton. Happenny v. Trayner, 111 Mass. 279.

Exceptions overruled.