by Bourne & Co. against Cawthorne assigned by Bourne & Co. assignment of to her, with power to issue execution thereon, and that Bourne the judgment against the prin& Co. might be decreed to deliver to her the judgment paper in cipal, overruled. respect of the said judgment, and that it might be referred to the master to settle an assignment of the judgment, the administratrix offering to pay what, if any thing, was due to Bourne & Co. on the said judgment, and to indemnify them against all costs by reason of any proceedings by her under such assignment. The bill also prayed an injunction to restrain Bourne & Co. from entering up satisfaction on the judgment, or releasing or discharging the same. To this bill a demurrer was put in for want of equity. In support of the demurrer, it was said that the judgment was satisfied by the payment of the debt; and therefore, if it were to be assigned, the administratrix could not possibly derive any benefit from it; and the Court would not decree that which would be wholly nugatory and useless; that the rule which prevails in Courts of Equity, with respect to sureties being entitled to the benefit of all securities given by the principal debtor, applies only to cases in which the securities are subsisting, and capable of being enforced, and not to a satisfied judgment; that admitting Dowbiggin, as surety, to have paid the debt, all remedy on the judgment was gone, and the plaintiff could not compel an assignment of it, and could only be treated as a creditor by simple contract of the defendant Cawthorne; that the Bournes could only assign what they had a right to, and they had no right to issue execution, the debt being satisfied; that three remedies were given by the law-first, the remedy by audita querela; secondly, as the judgment must be revived by scire facias, the party might appear and plead the satisfaction; or thirdly, the party might obtain a rule to show cause why satisfaction should not be entered up on the record of the judgment. The demurrer was overruled. Chief Baron Alexander said he could not upon the demurrer decide the points which had been argued, and from which it had been contended, that if the relief sought by the bill were given to the administratrix of the surety, she would not be able to derive any benefit from it; that if the case were one of a joint judgment against principal and surety, he should perhaps have said the judgment having been satisfied, there was an end of it; but where, as in the case before him, there were two judgments: and where the matter might come before the Court of Law, on a question of pleading in scire facias, or in a proceeding by audita querela, he thought he could not enter into the consideration of The case of the subject on demurrer. Dowbiggin v. Bourne, Younge, 111, 115, 116. Answers having been filed, this case was in 1837 heard before Mr. Baron Alderson. On behalf of the administratrix it was admitted, that if there had been only one action, there could have been nothing for equity to operate upon; but there being two actions, and judgment in one of them remaining unsatisfied, it was submitted the administratrix had a right to the benefit of that judgment. Mr. Baron Alderson observed that, supposing there had been only one action and judgment, the administratrix could have had no equity; so that the equity claimed depended on the form of the proceedings at law upon there being two actions; that a party applying to revive a judgment of more than ten years' standing must make an affidavit that the judgment is unsatisfied; that supposing the Bournes alone concerned, and it appeared by their affidavit on application to revive the judg ment, that the debt had been paid by the surety, would a Court of Law allow execution on the judgment against Cawthorne ? That a Court of Law only looks to the parties before the Court; and taking the Bournes to be the only parties interested, the Court would not allow them to issue execution against Cawthorne for a debt already satisfied; and that the question was whether, under the circumstances, there could be any remedy at law, supposing an assignment of the judgment was executed to the administratrix; and that if an assignment of the judgment was obtained, the assignee must necessarily proceed in the name of the assignor to enforce that judgment. He then proceeded as follows: "Dowbiggin paid the amount of the principal money and interest due on the note, and the costs of the action against him, and the holder of the note having been thus satisfied the whole of the principal money and interest, had no further claim, except perhaps in respect of the costs of the action against Cawthorne; and if he had afterwards ventured to proceed on the judgment against Cawthorne, the Court of King's Bench, in which the judgment was recovered, would have interfered in a summary manner to stay proceedings on the judgment except for those costs. The whole effect therefore of assigning the judgment to the administratrix would be to give her that, which would be wholly useless, except for the purpose of recovering the costs of the action against Cawthorne, and to which as administratrix of Dowbiggin she could not possibly have any right; that the case in substance was not distinguishable from the case before Lord Eldon, in which he said that if a bond is given by principal and surety, and at the same time a mortgage is made for securing the debt, the surety paying the bond has a right to stand in the place of the mortgagee; but that if there is nothing but the bond, the surety, after discharging it, cannot set it up against the principal debtor; that any assignment of the judgment would be entirely useless; and therefore, under the whole of the circumstances, the bill must be dismissed; but as the Bournes might readily have given to the administratrix what she required, though it was perfectly useless, the bill must be dismissed against them without costs." Dowbiggin v. Bourne, 2 Younge & Collyer, 462. This decision of Mr. Baron Alderson is far from satisfactory. The actions and judgments being separate, upon scire facias the one judgment could not, it is believed, have been pleaded in bar of the other. The proceeding upon scire facias could therefore only have been stayed upon audita querela, or motion; and upon audita querela, or motion, the Court of Common Law must have gone into the equitable principles; and if the decisions of the Irish Courts stated in these pages be right, the Court of Common Law would not have interfered to prevent the administratrix, from using the subsisting judgment to enforce the payment of her equitable debt. Permission should, it is conceived, have at all events been given to the administratrix to make the experiment of the conclusion at which a Court of Common Law here would have arrived in such a state of circumstances. They had also, as it Surety's estate decree made for ditors. Mills and Hamilton had a judgment against Browne, who was merely a surety for Stewart. must be inferred, a judgment against was bond, and probably the judgments were a warrant of attorney in separate actions.] the suit of Peoples v. Young was instituted for the administration of his estate, and Stewart, having claims against the surety's creestate of Browne, thought he could best give effect to them by getting Mills and Hamilton to go in as creditors in the suit of Peoples v. Young, on the footing of the judgment against Browne; and which they accordingly did. Upon this a bill was filed on behalf of the creditors of Browne against Mills and Hamilton, praying amongst other matters that Mills and Hamilton might be compelled to assign their judgment against Stewart to a trustee for Browne's creditors, with liberty to proceed on the same; and the Court said they had decided in Scott v. Lowry (a) (a) See ante, pages 620, 621. Principal ties in a crown made giving him liberty to put the bond in suit against the principal debtor and other surety. Surety paying has the benefit that such an assignment as was prayed might be made. The decree was, that Mills and Hamilton, upon their receiving the amount of the judgment, should assign to a trustee for the creditors of Browne, who had proved debts in the cause of Peoples v. Young, the said judgment against Stewart. Peoples v. Stewart, Hayes, 90. There was a crown bond given by Harrison, and by Dennis and Bailey as his sureties, for the faithful discharge by Harrison of his duties in the General Post Office, Dublin. The bond having become forfeited, a scire facias was sued out against each of the sureties. There was a verdict against Dennis, who paid the whole amount and costs: and therefore the record in the action against Bailey was withdrawn. Dennis now applied that he might be at liberty to put the joint bond in suit against Harrison and Bailey as he might be advised. In opposition to the application it was said on behalf of Bailey that a surety in a bond, paying the debt of his principal, stands only in the condition of a simple contract creditor against his co-surety for a contribution, and that when the bond has once been paid, it is extinguished at law, and no further proceedings can be taken upon it. Mr. Baron Pennefather pronounced the judgment of the Court. He said a crown bond is in the nature of a recognizance, and it is to be considered as if it were a recognizance. A recognizance though paid, is not therefore gone. It still exists at law until vacated on the record. A surety having paid the debt is entitled to the benefit of all securities both against his principal and co-surety. The only question was, whether a crown bond was to be treated between the parties before the Court as a bond in nature of a recognizance, or as an ordinary bond. That he had always regarded those bonds to the crown as in nature of recognizances. The application was granted. The King v. Dennis, 1 Hayes & Jones, 194. Some cases of the class of that just stated, which have occurred in the English Exchequer, will be found useful with reference to the general law of principal debtor and surety. Un que fuit suerty pur un collector del quinsme, que collector the crown debt ad collect, et devant payment de ceo devient bankrupt, veynt et of crown process offer a mitt in le Court le money due al Roigne in deposito, et against the prin- pria process a ceo levier des biens le collector.-Shute. Voile cipal. aver tiel process a levier le money a primes, ceo est dure (a).— (a) Allusion appears to be made to a provision in Magna Charta. See post, page 668. Morison, Est le course del Court. Mes si un collector rest sur accompt, il navera auter process vers lui quant in vie mes distress. Mes auterment est quant est deveinu debtor.-J. Manwood. Il semble reasonable.-Savile, 30. the circum paying a crown debt on behalf stances, to one of another. One having paid a crown debt on behalf of another took a Case where bond from the debtor, and afterwards applied for an extent. It benefit of prerogative process was urged that the extent ought not to be granted, it appearing denied, under that the debtor had had his discharge from the crown, and that all his bonds and securities had been given up; and besides the benefit of the prerogative process was waived by taking the private bond. The Court was of this opinion. "But," adds the reporter, "Nota bene: Upon Mr. Attorney-General's request they declared it should not be a rule, that a debtor of the crown (though the crown-debt was satisfied), should not have the benefit of the crown process to reimburse himself, though it could not be granted under the circumstances of this case." Rex v. Clarke, Bunbury, 221. The same case is more fully reported by Chief Baron Comyns. The bond was for a balance due upon a settlement of accounts between the obligor and obligee, including other monies besides those paid by the obligee to the crown on the obligor's behalf. That learned judge says, "if the principal debtor to the king fail, and his sureties pay, it was agreed by Carter [Sir Lawrence] and myself, and not denied by the others, that the sureties shall have the prerogative process against the principal." He adds that the case in question was decided chiefly in consideration of the circumstances: and that the Chief Baron [Sir Thomas Pengelly] said, that by the condition of the bond the obligor was not bound to pay to the king, or account to the king for, the monies by him received, but to pay to the obligee, and account to him, not only for the king's monies, but also his own proper monies, and therefore the king's name seemed to be used solely in trust for the obligee; but the king could not be trustee for another person. The King v. Clark, Comyns, 388. crown ordered An English information was brought by the Attorney-General Persons paying against the defendant for a discovery of the quantity of raisins the debt of the imported by the defendant, and for payment of the higher duty to stand in its thereon, he having duly paid the lower duty. The Attorney-Ge- place. neral obtained a decree to account, and the debt being liquidated [ascertained], the defendant was committed to the Fleet for nonpayment of it; upon which his brothers paid the debt; and on |