Happenny v. Trayner

Wells, J. The case does not differ in principle from Leonard v. Speidel, 104 Mass. 356. The defendants were not prejudiced in any manner by the discontinuance against James Trayner. No new or different cause of action was introduced. The grounds of recovery were not enlarged or changed. The sureties were not affected in their right or means of indemnity. That depends on their relations to their principals, as shown by the bond, and is not secured through the judgment. Whatever difficulty there is in the way of recovery here arises from the language of the condition of the bond. It is contended that “ such judgment as may be recovered against them,” cannot apply to a judgment against one of them alone. As affecting this objection, it is immaterial that the record fails to contain any suggestion of the death of James Trayner. The 281 literal variance would be the same, and the objection equally tenable on this ground if the record were complete, showing the death of the co-defendant and a judgment against the survivor, in accordance with the Gen. Sts. c. 127, § 11. As nothing is included in this judgment which was not embraced both in the purpose and the terms of the bond, the defendants show no ground in law or equity for being released from their obligation. Judgment for the plaintiff.