To a petition for a rehearing
Judge Lewisdelivered the following response:
The payment by appellee, Mitchell, of $100 on the replevin bond, and the execution of his note to Robinson, the creditor, for the entire balance due was, in the meaning of section 9, chapter 104, General Statutes, a payment, and entitled him to an assignment of the replevin bond. And as the legal effect of the transaction was to fully satisfy the plaintiff, such assignment gave to appellee “the right to sue out or use any ■existing execution or otherwise control the judgment for his own benefit, against the other defendants, so far • as to obtain satisfaction from the principal for the whole amount so paid by the surety, with interest, or from a co-surety his proper part of such payment.”
There is nothing in the record showing or tending to show that the payment and execution of the note by appellee was not in good faith, for he became legally bound for the entire debt, and Robinson had the right to coerce from him the payment. Certainly appellant' has n.o right to complain, inasmuch as he was thereby released absolutely from the payment of one-half the replevin bond.
As appellee became, in the first instance, liable to Robinson on the note, the payment of which he alone . assumed and which Robinson might at his will have *541coerced, we do not perceive upon what principle of' equity appellant can claim the benefit of a subsequent, agreement between them whereby, for a consideration that he did not contribute any part of nor was in any way connected with, appellee was released in whole or ■ part. Appellee’s responsibility had been increased and his attitude had been changed by the payment of the §100 and the execution of the note, and as appellant was not jointly bound with him on the note, he was not. entitled to the benefit of any abatement Robinson saw proper to make, or even a release of the entire amount.
The insolvency of the principal, Mary Stubbins, is. distinctly alleged in appellee’s answer, and, so far from, being denied, is in effect admitted in appellant’s reply.
Petition overruled.