Jedediah Adams vs. Russell Drake, 11 Cush. 504

Dewey, J. Whatever may have been the purpose of the party paying the execution of Josiah Gay to his lawful attorney, or however effectual to secure the continuance of the judgment in full force and operation as against the property of all the judgment debtors, a different state of facts existing at the time of making the assignment might have proved, it seems quite clear to us that by the payment made by Adams, one of the judgment debtors on the 16th of October, 1850, the judgment and execution were wholly discharged, and satisfied.

This payment by one of the judgment debtors was in law a payment by all, and operated as a full discharge of the execution, leaving the party paying it to his remedy by action against his codebtors for their proportionate liability. The receipt, though not indorsed on the execution, operated equally to discharge it, because it was in terms an acknowledgment of full payment of the same. This payment was on the day previous to the assignment of the execution by the judgment creditor. The case falls within the principle of the cases of Hammatt v. Wyman, 9 Mass. 138, and Brackett v. Winslow, 17 Mass. 153.

In view of the facts in the present case, it has become unnecessary to consider more particularly the cases of Hodges v. Armstrong, 3 Dev. 253, and Sherwood v. Collier, 3 Dev. 380, cited by the counsel for the demandant., There was nothing here for the assignment to operate upon, and no legal rights resulted from it, authorizing a levy of the execution on the estate of said William Drake. The result is, therefore, that Ihe demandant is not entitled to maintain his action. Demandant nonsuit.