McKim v. Demmon

Gray, C. J. It being agreed in the case stated that Lowry, one of the sureties upon the bond sued on, was discharged from all further responsibility thereon by a decree of the Probate Court made pursuant to the provisions of the statute, it must be assumed that the decree was made after due notice to all persons interested, as required by the St. of 1843, c. 56, § 1; and, if such notice was given, the validity of the decree is not affected by the defendant’s having had no actual knowledge of it. But the legal effect of that decree was to discharge Lowry’s ~ co-sureties as well as himself. This is evident from the concluding provision of § 1, which does not speak of an additional bond or additional sureties, but requires the principal to “ give a new bond, with such surety or sureties as the court shall judge sufficient,” as well as from the provision of § 3, that, “ when a new bond shall be required, as above provided, the [406] sureties ” (not merely the surety who has been discharged) “ in the prior bond shall nevertheless be liable for all breaches of the condition committed before the new bond shall be approved by the judge of probate,” — clearly implying that none of the sureties upon the first bond shall be responsible for any breach of trust committed after the second bond has been given and approved. Loring v. Bacon, 3 Cush. 465, 468. This construction of the statute accords with the general rule of law, by which the-release by the creditor of one surety, without the knowledge or assent of the other, and without reserving any rights against him, discharges him also, because it alters the extent of his liability, by depriving him of his right, in case he is obliged to pay, of recovering contribution from his co-surety. Evans v. Bremridge, 2 K. & J. 174. Sohier v. Loring, 6 Cush. 537. Howe v. Peabody, 2 Gray, 556. Greenfield Savings Bank v. Stowell, 123 Mass. 196. Smith v. United States, 2 Wall. 219. If the Probate Court had authority under any circumstances to make the second bond additional to, instead of a substitute for, the first bond, so far as future breaches of trust were concerned, yet no order of the court nor recital in the second bond to that effect, made without the assent or knowledge of the defendant, could revive or continue his liability as a surety on the first bond, from which he had been released by the discharge of his co-surety. Judgment for the defendant.