
    Boling v. Young.
    1. A surety on a judgment is discharged from liability thereon, by a valid contract for an extension of time for the payment thereof, made by the judgment creditor without the knowledge or consent of the surety.
    2. An undertaking for stay of execution of a judgment on the docket of a justice of the peace, executed after the time allowed by law, in pursuance . of an agreement of the parties, is valid as a common law contract, if supported by a sufficient consideration, though it may not be effective as a statutory undertaking.
    3. One who executes such an undertaking at the instance of the principal judgment debtor, without the knowledge or consent of the sureties thereon, knowing that they are such, is liable on the undertaking to the creditor, if his principal makes default, although the sureties are thereby released from liability.
    4. Where, after stay of execution has expired on such a judgment, a surety, who has been thus released, is compelled to pay the judgment to save his goods and chattels from forced sale by an officer who has seized them on execution issued on said judgment, he may recover back from the judgment creditor the amount so paid. Such compulsory payment is not a satisfaction of the judgment or of the undertaking, and the creditor may, after recovery back against him, maintain an action on the undertaking if the principal makes default.
    Error to tbe District Court of Knox County, Obio.
    The question involved arises on a demurrer to an amended petition of defendant in error.
    It is alleged by Young, that on the 24th of April 1874, he commenced an action before a justice of the peace, on a promissory note, against Joseph Brown, principal, and Joseph Jenkins and William King, sureties, and on the 2d of May 1874, recovered a judgment thereon, against Brown and Jenkins, for $108.75. The case was continued as to King, until May 9th, 1874, when a like judgment for the same amount was rendered against King.
    On the 18th of May, the plaintiff consented that Brown might stay the execution. Accordingly he, without the knowledge or consent of Jenkins or King, procured Boling, the plaintiff in error, to execute the following undertaking:
    
      “ I, G. W. Bowling, resident of Knox county, as surety for stay of execution in the above cause of Andrew Young against Jos. Brown, James Jenkins and William King, do undertake to said plaintiff that in default of payment by defendants, I will pay the judgment, with interest and costs, and costs that may accrue. G. W. Bolins.
    
      “ Approved by me and signed before me this 18th day of May, a. d. 1874. B. A. F. Greer,
    Justice of the Peace.
    
      “ Bail allowed by order of plaintiff.”
    Boling executed this undertaking at the sole request of Brown, with full knowledge that Jenkins and King were sureties only, and after being indemnified for so doing by Brown.
    When the stay expired, plaintiff caused execution to issue against all the defendants to the judgment, and for want of property of Brown, to satisfy the same, the constable seized and was about to sell the property of Jenkins, to save which he paid to the constable $138.45, being the judgment, with interest and costs on the writ. He immediately brought suit in the Knox common pleas against Young to recover back the same, on the ground that he had been discharged from all liability on the judgment, by the acts of Young and Brown, as before stated, and such proceedings were had that he recovered a judgment against Young, for the amount he had paid the constable, with interest, and. $10.20 costs, making an aggregate of $154.41.
    Young now seeks to recover this amount, with interest from the time judgment was rendered against him in favor of Jenkins.
    Upon this state of facts the common pleas held there was no cause of action. The district court reversed this holding, and the case is here to review the decision of the latter court.
    
      Oritohfleld & Graham, for plaintiff in error :
    In the petition of the plaintiff below, it is averred that on April 23, 1875, Jenkins paid and satisfied the plaintiff’s judgment against Brown, Jenkins and King, which satisfied the undertaking made by Boling, as he could not be liable on that undertaking as surety for the defendants beyond the express provisions of the same. Hall v. Williamson's Administrators, 9 Ohio St. 17; Bank of Steubenville v. Carroll's Administrators, 5 Ohio, 573; State v. Medary, 17 Ohio, 554; State v. Crooks, 7 Ohio, 573; McGovney v. State, 20 Ohio, 93; State 
      v. Cutting, 2 Ohio St. 1, 6. The satisfaction of the judgment of Yormg against Brown, Jenkins and King by the payment of it in full by Jenkins on Apiril 23, 1875, is a bar to an action against Boling, upon a bond for a stay of execution on that judgment. Cass v. Adams, 3 Ohio, 223. The allegation that Boling executed the undertaking without the consent of Jenkins, at the instance of his co-defendant Brown, furnished no ground for the recovery of a judgment by Jenkins against Young, and does not support Young in an action against Boling on the bond, as Young was not responsible for the act of Boling, and the bond for stay of execution did not release Jenkins from his obligation to Young. Riblet v. Davis, 24 Ohio St. 114. If Jenkins had caused it to be certified on the docket of the justice that he was surety for Brown, he might have maintained an action against Bowling, upon payment of the judgment, but not against Young. Dennier v. Myers, 20 Ohio, 336. The knowledge of the justice that Jenkins was surety did not relieve him from the necessity of having the fact of his suretyship certified on the record, and having neglected to do so, he was in no position to claim the benefit of the statute'protecting sureties. Rev. St. §§ 5419, 6656, 6663; Elliott v. Elmore, 16 Ohio, 27; Swan’s Tr. 10 ed. 203.
    
      W. O. Cooper and H. E. Green, for defendant in error:
    We insist, that, as Jenkins was only surety for Brown on the note upon which the judgment was rendered; knowing which Boling executed the bond, as stay bail, at the request of Brown as his surety, in the absence of Jenkins and without his consent or knowledge, and after being fully indemnified by Brown; Boling became “ primarily liable,” and no execution should have been issued against Jenkins until Boling had been exhausted. Swan & Sayler St. 422; Rev. St. § 6654. Boling executed the bond in pursuance of the statute, which notified him that he was primarily liable, and the provisions of which, so far as fixing the liabilities of the parties, were part of the bond. Therefore Jenkins, who was wrongfully compelled to pay the judgment to save his property from sale after the same had been levied on and advertised, rightly compelled Young to repay him, thus leaving the parties in the same position they were before the payment by Jenkins. The payment by Jenkins under compulsion in no way changed his legal rights nor the rights of the other parties. Knox County Bank v. Lloyd's Administrator, 18 Ohio St. 353; Mays v. Cincinnati, 1 Ohio St. 268-278; Knox County Bank v. Doty, 9 Ohio St. 505-509; Baker v. Cincinnati, 11 Ohio St. 534. Jenkins could have recovered in an action against Boling. Denier v. Jenkins, 20 Ohio St. 336. And if Jenkins when wrongfully compelled to pay could recover from Boling, certainly Young, the judgment creditor to whom Boling undertook to pay, can recover.
   Johnson, J.

More than ten days had elapsed after the judgment against Brown and Jenkins had been rendered, before this undertaking for stay of execution was given by Boling. It was done without the knowledge or assent of Jenkins, who was known to Boling and Young as surety only, and with the permission and consent of Young, the judgment creditor, at the request of Brown, the principal to the judgment.

If the same effect is to be given to this undertaking, as if given within the ten days allowed by law for entering stay, then it follows, that, as between Boling and Jenkins, who was surety only, the former was primarily liable on the judgment, the assent of the latter to giving such undertaking, being wanting. S. & S. 424; R. S. 6654.

If this undertaking be regarded as a statutory obligation, then, in case of compulsory payment of the judgment by Jenkins; he could have maintained an action on the undertaking, by reason of the primary liability of Boling.

The compulsory payment by Jenkins would not be a satisfaction of the condition of the stay bail. It was so held in Dernier v. Jenkins, 20 Ohio St. 336.

For equally cogent reasons, Jenkins had a right of action against Young, the judgment creditor, to recover back the amount he was compelled to pay to release his property. As to Young, the compulsory payment was not a satisfaction of the judgment in his favor.

But the undertaking was given after the time had elapsed, within which it could be taken. It was competent, however, for the parties to secure the extension of time for payment by a contract valid at common law. If supported by a sufficient consideration, such a contract is mutually binding on the parties to it. In legal effect, Boling promised to become surety for the payment of this judgment if Young would wait eight months. Young agreed to this, and fully performed the promise on his part. Boling was therefore liable on this undertakings as a common law contract, unless he was discharged by the payment by Jenkins, under compulsory process to save his property. Duchwall v. Rodgers, 15 Ohio St. 544.

It was a binding contract, between Young, as judgment creditor, and Brown, the principal debtor, and Boling, as his surety, that if Young would extend the time of payment eight months, Boling would pay the judgment in default of payment by his principal. As Jenkins, the surety in the judgment, was not a party to this contract, and did not assent to it, he was discharged from all liability. Blazer v. Bundy, 15 Ohio St. 57.

It remains to inquire, what was the effect of the compulsory payment by Jenkins ? It is claimed that this payment satisfied the judgment and therefore the condition of the undertaking was not broken. That condition was that in default of payment of the judgment by “ defendants ” he would pay the same. The defendants were Joseph Brown, James Jenkins and William King. The two latter, Boling had aided to discharge from liability, so that in fact Boling, was surety for Brown only.

The payment by Jenkins was made under duress of goods and chattels, and gave him a right of action to recover the amount, either on the undertaking, as was held in Dernier v. Jenkins, supra, or against Young. Such a payment did not operate as a satisfaction of the judgment. As between the parties to it, who had not been discharged by the extension of time, it was still in full force. Boling was liable to Young for the default of his principal. As Brown had made default, he was liable to Young, and the compulsory payment by Jenkins, which he recovered back in an action against Young, was not a satisfaction of the judgment nor a performance of the condition of the undertaking. Boling remained liable thereon to the extent of the judgment, interest and costs thereon, but not for costs adjudged against Young in the action against him by Jenkins to recover back the amount paid. Baker v. Cincinnati, 11 Ohio St. 534; Denier v. Jenkins, 20 Ohio St. 336; Stephan v. Daniels, 27 Ohio St. 527.

Judgment of the district cout't affirmed.  