Herrick v. Orange County Bank

The opinion of the court was delivered by Isham, J. We think the declaration is defective on this demurrer. The subject matter of the complaint is not a proper matter for relief at law. If the party is entitled to any relief, his appropriate remedy is in equity. It is admitted by the demurrer that the plaintiff signed the note as surety, and that the other signers were principals; that the note was sued, and the property of the principals attached, sufficient to secure the debt, and save the plaintiff harmless as surety. It is also stated that the property has been released from that attachment by the neglect of the bank to charge the same in execution. If the principals have become insolvent, and the execution is now levied on the property of the defendant, it is not a matter for the interference of a court of law. In the case of Marshall v. Aiken, 25 Vt. 328, it was held, “ that a “ judgment upon a note operates as a merger of the note, and at “ law it becomes so far conclusive upon the parties to it, as to “ exclude a defense growing out of the relation of principal and “ surety.” This subject is examined and the authorities collected in 3 Lead. Cas. in Eq., 382. Whether a court of equity would grant relief, under the circumstances of this case, we express no opinion, as the question is not properly before us. The case referred to is an authority that this remedy at law cannot be resorted to upon the matters stated in the declaration. We think, also, that all those persons against whom that execution issued, should have been made parties to this prosecution, as plaintiffs. The writ of audita querela is a judicial writ, and must, [587] like tlie writ of scire facias, or certiorari, be brought by the parties to the former proceeding. In the case of Gleason v. Peck, 12 Vt. 56, the court remarked, “that the parties to the judgment and execution sought to be vacated, must be parties to this writ.” The same principle was sustained by Ch. J. Williams, in Littlemore v. Wainwright, 16 Vt. 174, and cases cited. The matter stated in this complaint is personal in its character, and affects the judgment as well as the execution. If this writ is sustained, it must be by setting aside the execution altogether, so that the other defendants would be discharged from it, and for matters in which they have no interest, and for which they would be entitled to no relief; Starbird v. Moore, 21 Vt. 533. The powers of a court of equity are adapted to cases of this character, in granting relief to a surety when he is entitled to it, and at the same time enforce the judgment against the other defendants who are not entitled to such relief. For these reasons, and without referring to other matters which have been argued in the case, we think the judgment of the county court must be reversed, and' judgment rendered for the defendants.