Burton v. Stamper

Pearson, J.

It is clear, that Joseph J. Williams, the trustee, is primarily liable for the breach of trust, and the defendants James and George Stamper are only liable secondarily; for, the decree, if made for the plaintiffs, ought and must be to recover the amount from Joseph J. Wiliams in the first place, and in the event it cannot be made out of him, then to recover from the defendants James and George Stamper.

This case is fully decided by that of Lewis v. Owen Lewis, 1 Ired. Eq. 290 ; where it is held, “ examining a party is an Equitable release to him, as to the matter, to which he is examined. If the party examined be the one primarily liable and the other defendant only secondarily, the plaintiff gives up his claim against both by the examination of the former.”

The bill must be dismissed with costs, except as to the defendant Joseph J. Williams.

Per Curiam.

Decree accordingly.