Tracy v. Preble

117 Mass. 4, 1875 Mass. LEXIS 134

• Court: Massachusetts Supreme Judicial Court
• Decided: January 11, 1875
• Status: Published

Opinion

Colt, J.

Mitchell, for whose benefit this action is prosecuted against the defendants as sureties on the official bond of one Roberts, a constable of the city, had, before the commencement of this suit, obtained judgment against Roberts alone for the same wrongful official act. Upon this judgment an execution was issued, upon which Roberts was arrested and entered into a poor debtor’s recognizance. He made default upon this recognizance, and, upon the return of the execution unsatisfied, Mitchell brought an action upon it, which is still pending.

The court ruled, against the defendants’ request, that the arrest of Roberts, his default, and the pendency of the suit on the recognizance, were no bar to this suit upon his official bond, and this ruling was right.

The commitment of a judgment debtor on execution was a satisfaction of the judgment at common law. It is not so where the debtor is discharged from arrest by giving recognizance under our statutes. Gen. Sts. e. 124, § 22. The right to proceed against other parties who stand in the relation of sureties for the same debt is not defeated except by the actual payment of the judgment, and the creditor may proceed against different parties at the same time until that result is reached. Murray v. Shearer, 7 Cush. 333. Moore v. Loring, 106 Mass. 455.

Judgment on the verdict.