Duer v. Morrill

Moran, J. The liability of the plaintiff in error arises on the terms of the undertaking, by which, to prevent the levy of the attachment, he undertook and promised to the effect “ that if the said plaintiff shall recover judgment, in said action, we will pay to the said plaintiff, upon demand, the amount of the said judgment together with costs.” The import of this undertaking is not that the defendant in the attachment suit should pay the judgment, but is a positive agreement that the signers of the undertaking would pay the amount of the judgment on demand. The taking of the judgment and the demand on them to pay it fixed their liability, and whether the plaintiff in the suit neglected to issue execution upon the judgment, or so agreed that he would be prevented from enforcing payment of it by execution for a given time, could in no manner affect the rights of the plaint, iff in error. Upon the rendition of the judgment the signers of the undertaking might undoubtedly pay the same, and those who signed as sureties could take such steps as they saw fit against the judgment debtor without regard to any stipulation to stay execution. Palmer v. Vance, 13 Cal. 553; Drake v. Smith, 44 Iowa, 410. Further, an agreement to stay execution is not an agreement to give time for the payment of a judgment. The judgment is payable when entered, and may be discharged at once. Execution is but a method of enforcing payment by levy and sale of the defendant’s property. The order staying execution did not disable the plaintiff from demanding payment from the undertakers at once, and bringing immediate suit on the instrument on which plaintiff in error was surety. 31 Miss. 99. An agreement which will discharge a surety must operate upon the instrument he signs. A contract with the principal, which only affects some collateral right which the plaintiff may have, if it does not postpone that on the original obligation, is immaterial. U. S. v. Hodge, 6 How. 279. The questions as to whether the attorney had authority to make the stipulation granting stay of execution, and whether there was, under the circumstances, any consideration which would support such an agreement, we deem it unnecessary to decide. The judgment of the superior court will be affirmed. Judgment affirmed.