Clemens & M'Clellan v. Prout & Brahan , 3 Stew. & P. 345 ( 1833 )

Taylor, J.

This case originated in a motion made by Prout, in the county court of Madison county to quash a.n execution which had been issued against him and tho other defendant in error, at the suit of the plaintiffs.

It appears that a judgment had I. the plaintiffs, against Pront, in oa during the exigence of what'was 'the indorsement iaw. .>o;>n recovered by sid county court, com moniy called

By that law it wj» provided, iu substance, that if the plaintiff in any execution failed, by an indorsement upon.it, to authorise the sheriff to receive, at par, the notes of certain banks, the paper of which .was greatly depreciated, the defendant, upon executing bond, with good and sufficient security, for the payment of the money atibo expiration of one year, should have his property,, which might have been levied on, restored to him, and this bond, if not punctually paid, was 'declared to have the force and effect of a judgment. ,

The execution which was issued on the judgment of the plaintiffs against Front, had- no such indorsement on it, and lie executed his bond to them, with Brahan as his security, according to the provisions of the statute. The debt was not paid at the maturity of the bond, and an execution was", thereupon, issued against'Prout and Brahan, which is the one upon which !the motion to quash wan made.

The ground alleged for the motion was, that the judgment had been satisfied by Brahan, the security, which fact was proved by the parol testimony of one Mills.

The county court overruled the motion,from which decision the case was taken, by writ of error, to the circuit court, there reversed, and is now here, that ■the latter judgment may be revised.

This court, in the case of Fryer vs. Austill,^a decided, that where the execution, and all the proceedings119 in the record have “the appaerauce of fairness, and a defendant has made payments, or Las any other defence to the execution, which docs not appear in the record, but must bo proved by matters in pais, a court of “chancery alone, can aiford relief/’ It is possible, that decision.wont too far; it was certainly broader .than was üocessury for the disposition of that case. Although antiquated, this court might re-cognise the remedy by audita querula, as available, were it to be resorted to. But it was intended, the case just cited, to determine that, in such case, no remedy could be afforded by motion, or the writ of supersedeas.

That decision settles the question before us, and, although, if this wore now res integra, I should be in favor of extending the remedy, by motion, to cases of the kind, yot I consider it better, especially where a mere matter of practice is concerned, not to disturb former precedents, but to enforce the maxim of stare decisis.

The only testimony introduced in this case, was the parol evidence of the witness, that Brahan had paid the debt: that was not sufficient to support the motion.

This point disposes of the case ; but, as it was argued entirely on the ground, that the execution was intended to be used for the benefit of the security, and the right of the parties thus to use if, it is considered proper, briefly to notice that subject.

This court, when a proper case occurs, would certainly enforce the doctrine of subrogation in favor of a surety; but, before that doctrine can be successfully invoked, if must appear that the object is to enforce the security, which the creditor, who has been paid by the surety, had in behalf of the surety. In this case, we have no evidence that the execution was intended to be used for the benefit of the surety; and this court will not voluntarily say such was the fact.

On the first point, the judgment of the circuit court is reversed, and that of the county court affirmed.

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