Denton v. Price ( 1869 )

Opinion of the Court by

Judge Robertson:

Although Price might, before satisfaction, have quashed the replevin bond because Denton was not bound by it, yet being paid by Smith as surety for Jones, he had no right to a quashal for his own benefit, nor had Smith in Price’s name any such right, because thereby he exonerated himself and might throw the whole debt on Denton, who on payment by Jones or Smith as his surety would have been liable only to contribution of one-half. The whole burden should not be then thrown on Denton, as it will be if Jones be insolvent. Smith’s remedy is against Denton for contribution and not by a quashal of the replevin bond, releasing himself.

Gorin, for appellant.

Wherefore, the judgment of quashal is reversed and the cause remanded for a dismissal of the motion to quash.