Follett v. Shumway

TAFT, J. The defendant, an officer, served a replevin writ in favor of one French against the plaintiff, and took a bond signed by said French and one Earl as surety, conditioned as provided by the statute, R. L., s. 1219. French was cast in the suit. The bond was never good and sufficient. The plaintiff seeks in this suit to recover damages for the defendant’s default in not taking a good and sufficient bond. The defendant was entitled to the benefit of the bond to secure for him any liability he might be under to the plaintiff in respect to it. Evarts v. Hyde, 51 Vt. 183, and cases therein cited. The defendant, indemnifying the plaintiff for costs, had the right to maintain an action,' in the plaintiff’s name, to recover upon .the, bond. The plaintiff brought suit upon the bond against Earl, the surety, recovered judgment, and upon partial payment .thereof, discharged the defendant therein from anjT further liability upon it. The continued liability of Earl upon the judgment, had he not been discharged therefrom, the court below found would have been of some value to the defendant. French was insolvent, and by discharging Earl, the plaintiff put it out of the defendant’s power to proceed against him, Earl, upon the judgment which he, the plaintiff, had recovered upon the bond. The plaintiff cannot thus inter-meddle with the rights of the defendant except at the loss of his rights against the latter. The result of his so. doing, in this cause, is, that he cannot recover. Judgment affirmed.