
    
      GRAY vs. BALDWIN.
    
    Appeal from the court of the first district.
    A¡» assignment sousMtng prive, not autho-■:nse th&.assignee to tüke om an order of seizure and sale.
    I ⅛ surety who pays f<K the principal, is not entitled to take '■red'-T™0 °f the
   Porter, J.,

delivered the opinion of the gQyp^ The defendant, in this case, had become surety for the plaintiff and others, on an J r appeal bond. and being obliged to pay the ® * ’ o o * am0unt of the judgment, he took a receipt, ... jo * with subrogation, from the attorney at law of die obligee, and issued execution in his name, which was levied on property of the plaintiff.

The court of the first instance enjoined the defendant from proceeding in this way, and on hearing the parties, made the injunction perpetual. The reason assigned by the judge for this decision is, that the judicial surety, who pays either voluntarily or by virtue of an execution against him, acquires no title to use the judgment obtained against his principal so as to sue out execution upon it.

We find it unnecessary to say whether we accede to this doctrine in the whole extent; being, at all events, satisfied that in its appli- . cation to the particular instance before us, no error was committed.

Whittelsey for the plaintiff; M'•Caleb for the defendant.

The evidence of the payment is by an act sous seing privé, which did not become authentic by being filed in the record of the case; such an instrument does not authorise the surety to use the via cxecutiva. This point was expressly decided in the case of Gilly vs. Lee, vol. 1, 237.

Nor did it confer any authority on the surety to take out execution, in the name of the person in whose favor the judgment liad been rendered. There is no such right given by any positive provision of our law, and the exercise of it is inconsistent with those principles, which define the privileges acquired by those who pay the debts of others with whom they are jointly bound. Again, it would be permitting that to be done indirectly, which could not be done directly.

it is therefore ordered, adjudged, and decreed that the judgment of the district court be affirmed with cost.  