Moore v. Loring

Ames, J. It is not contended on the part of the defendants, that either the condition of the bond, or that of the recognizance, [457] has been hterally fulfilled. The principal debtor did not pay the amount of the judgment, according to the tenor of the bond, and he did not deliver himself up for examination according to the condition of the recognizance. But the defendants insist that the mode in which the plaintiff has endeavored to enforce payment of the judgment has had the effect to discharge them from their responsibility as sureties, both upon the bond and the recognizance. The judgment debtor was arrested upon the execution after the liability of the defendants upon the bond had attached. The case of Murray v. Shearer, 7 Cush. 333, decides that an arrest of the judgment debtor under such circumstances does not discharge the sureties upon a bond, even though upon such arrest he was committed to prison, and discharged on taking the poor debtor’s oath. The damages recoverable against them are not affected by an unsuccessful attempt to recover them of the principal debtor. Upon the authority of that case, the plaintiff, in his suit upon the bond, is clearly entitled to prevail. Ho collateral security is lost or waived by the mere legal operation and effect of committing the debtor to prison. Twining v. Foot, 5 Cush. 512. With regard to the suit on the recognizance, the case is equally clear. The plaintiff was not confined to his remedy upon the bond, but had a right to arrest the debtor on the unsatisfied execution. Such arrest, if made, would be subject to all the legal incidents of arrest on execution, and the debtor would be entitled to the benefit of the law for the relief of debtors so situated. The recognizance is broken by his failure to submit himself to examination, and it is no defence to his surety that the plaintiff was endeavoring to enforce his remedy upon the bond. The bond and the recognizance are cumulative securities for the same debt. The creditor may enforce both of then!1 by suit, to the extent and for the purpose, however, of obtaining the amount of his original judgment with interest and costs, the payment of which will be in full for his claim úl noth actions. Judgment» for the plaintiff.