Tristram Dalton versus The Woburn Agricultural and Mechanic Association, 24 Pick. 257

Shaw C. J. delivered the opinion of the Court. This is assumpsit, brought to recover back money alleged to have been paid by the plaintiff by mistake. But it appears to us, that the fact on which the plaintiff relies is not established. The plaintiff was surety for one Nutting on a note to the defendants. They held six notes against Nutting and sued on them all, including the one on which the plaintiff was surety, in one writ, and took one judgment for the whole.

The commencement of the suit against the principal and the attachment of property, did not prevent the holders of the notes from •suing the sureties at the same time, and proceeding with both, up to the point of actual satisfaction. An actual payment by either principal or surety, is a bar to any further action against either, upon the plain principle, that a creditor can have but one full satisfaction of his debt, though he may have various securities, and different parties may be severally liable.

Now, if we understand the facts, at the time when the money was paid by the plaintiff, the association had received nothing of the assignee as the avails of the attached property. Until the avails were realized, that property stood only as collateral security and did not prevent the association from demanding and receiving of Dalton, as surety, the whole amount of the note, then due. This being rightfully paid at the time, cannot be recovered back.

If the association afterwards received, out of the attached property or otherwise, more than the balance due to them, it would not be to the use of the plaintiff; it would be money paid by Nutting in his own wrong.

If indeed at the time of the settlement made by the plaintiff, the association had received a part satisfaction of their judgment, founded on the six notes consolidated, such satisfaction would have been a payment pro tanto, on the note on which the plaintiff was surety, and then on the principle statéd, that the holder can have but one satisfaction, the plaintiff, as surety, would have been liable only for the balance. Upon the other point, we are of opinion, that the case is entirely clear for the defendants.

It appears, that the association had four notes on which Barrett was liable ; on three of these the plaintiff was liable, and on one he was not. The association brought a separate action upon the latter, and one action upon the three former, against Barrett, and took judgment in each action. They applied the proceeds of the attached property, to the full satisfaction of the former judgment, and a small balance only to the latter.

The plaintiff insists, that the defendants should have included . the whole four notes in his suit against Barrett, and then the satisfaction would have enured pro tanto, and operated to reduce in part, the note on which the plaintiff was liable. , Had they so done, it is obvious that it would have enured to the benefit of the plaintiff. But they were under no obligation so to do. A creditor holding several notes against one, with various sureties and indorsers, may commence several suits on each, if he will.

Indeed, it is the only mode to avoid a consolidation, which would often involve considerable confusion of rights and liabilities. The statute relied on, does not prohibit several suits ; it goes no further than to provide that a creditor shall have no more costs than if they were joined. St. 1784, c. 28, § 12. Even this was a provision made solely for the benefit of a defendant, and one which he may waive if he will. It does not affect the right to sue'and recover judgment.

Where there are several parties, collaterally liable, the case seems not within the equity of the statute; whether it would be deemed within the letter, in a case where it should be insisted upon by the defendant, is a distinct question, which it is not necessary to consider. As a general rule, we think it very clear, that one holding several securities against another, on which there are distinct sureties, more or less competent and áble to pay, may obtain security or satisfaction by attachment and judgment or otherwise, of one in full, and retain his entire claim on the surety upon the other.

Neither law nor equity requires that such payment shall be considered as made for the benefit of all the sureties, ratably. It is a very different case from that where the notes are in fact consolidated into one judgment, and the judgment is afterwards paid in part, and where the payment cannot be distinguished and applied to the separate notes. This view of the case renders it unnecessary to consider the other point ; though we cannot perceive why it is not equally decisive.

It appears, that the money now sought to be recovered back was paid voluntarily, under a full knowledge of all the facts and circumstances of the case. Every particular, which is now relied upon, was as fully obvious and apparent when the plaintiff made the payment as it is now. Any new views of the law, which the plaintiff has since taken, cannot warrant him in treating his voluntary payment, with a knowledge of all the facts, as a ground to recover the money back. Plaintiff nonsuit.