#### RUFUS BARRINGER, Adm'r., v. SAMUEL G. BOYDEN.

Where money was paid by a surety to the plaintiff in an execution, on an understanding that the judgment was to be assigned to a third person, for the benefit of the surety, and such assignment was subsequently made, it was Held that this was not a payment of the judgment, but that it might be enforced against the principal, in the name of the plaintiff, for the benefit of the sureties.

Scire nacías to revi ve a j udgmeut, tried before Heath, J., at the last Term of the Superior Court of Rowan.

*188The sci. fa. was brought first in Rowan County Court, at the instance of D. "W". Hunnicutt and the administrator of one Holshouser, who had been the sureties of the defendant, Boyden, and was brought to the Superior Court by appeal; it recited the judgment against the three correctly. A fi. fa. had issued and been returned nulla bona ; ■ a ca. sa. had also issued against Boyden, on which he took the benefit of the act for the relief of insolvent debtors. The execution docket bf Rowan County Court, showed this entry opposite to the statement of the execution in this case, “ January 18th, 1851, for value received, I assign this judgment to Archibald Hunnientt.” Signed, A. ~W. Brandon.

It was shown by Jas. E. Kerr, esq., clerk of the county court of Rowan, that at the time this assignment was made, the plaintiff in the judgment, Col. Brandon, and the two sureties, came to him and told him, that the sureties had paid or settled with the plaintiff, and they wished to have the matter so fixed on the docket, as to keep the judgment alive-for the benefit of the sureties. He did not recollect when it was said this arrangement was made, but his impression was, it was then. He saw no money paid.

The Judge charged the jury :

First. If it was understood at the time the plaintiff received the money from the sureties, that it was a payment, the plaintiff was not entitled to recover.

Secondly. If there was no understanding at all, at the time the plaintiff received the money from the sureties, then it was a payment, and the plaintiff would not be entitled to recover.

Thirdly. If, at the time when the plaintiff received the money from the sureties, it was understood that an assignment was to be made, in order to keep the judgment in force, and alive, for the benefit of the sureties, and the assignment was then, or subsequently made, in pursuance of such understanding, then such receipt of the money, on the part of the plaintiff, was not a payment, and the. plaintiff would be entitled to their verdict. Defendant excepted.

*189’ Yerdiet and judgment for the, plaintiff, appeal by the defendant.

Fleming, for the plaintiff.

Hoyden, for the defendant..

Manly, J.

The right of a surety to keep alive a j udgment,. which he has paid, by having an assignment made to a stranger, for his'benefit, is unquestionable. "When he advances the money, he has a clear equity (if he desire it) to be subrogated to the rights of the creditor, and to use the creditor’s judgment for the purpose of coercing payment against the principal.

Whether money advanced, in sneh way, be an extinguishment, or a purchase, seems to be a question of intention. If it be paid, and nothing be said or done to show a contrary intendment, an extinguishment will be presumed; but if an assignment be made to one, not a party, so as to show a purpose to keep it alive, it is sufficient. That a party defendant furnishes the money, and that the assignment is made on a day, subsequent to. the advancement of the money, can make no difference, provided it was intended, at the time it was advanced, as a purchase and not as a payment.

The money furnished to- pay the judgment was from a surety, but it is affirmed as a fact by the verdict of the jury, that it was not intended to extinguish the judgment, but to purchase it. There was no release or satisfaction entered of record, or otherwise declared, but an assignment to an indifferent person, for the use of the purchaser.

There is no authority or reason against the revival of the judgment upon tlris'state of facts. The instruction of the Judge below, based upon it, is entirely correct, and the judgment is, therefore, affirmed. See Hodges v. Armstrong, 3 Dev. Rep. 253 ; Hanner v. Douglass, 4 Jones’ Eq. 262.

Per Curiam,

Judgment affirmed.