
    Boulware, Adm’r, v. Robinson.
    Whero a surety discharges the joint obligation of himself and principal by giving his oivn negotiable paper, which tho obligee accepts in full satisfaction, he may maintain an action against the principal for the amount before payment of the negotiable paper so given out by him; not so where ho lias discharged the original obligation by the giving of a bond or other security not negotiable. But he may recover t-.ie amount actually paid by him since giving the bond or other security.
    Appeal from Harrison. This was a suit by the appellee to recover money paid by him for Moore, of whose estate the appellant was administrator.
    The" record disclosed that Valentine G-. Prewitt was. surety for Moore in an injunction bond. Prewitt died, and judgment was recovered on the bond against liis executors, of whom the appellee, Robinson, was one. The latter paid a part of the amount for which judgment was so recovered against him, and gave liis own bond for tlie residue, which was received in fnil satisfaction of the ‘injunction bond. Robinson paid a part of the money due upon his bond so given in satisfaction of the obligation of Moore. A part remained unpaid. There was a verdict and judgment for the plaintiff for the full amount of the judgment on the injunction bond, and interest. The defendant appealed.
    
      C. M. Adams, for appellant.
    A bond given in discharge of a judgment by tlie security will not enable him to recover of the principal the amount until Clio bond has been actually paid. (2 Greenl., 100.) The testimony in tills cause shows that there was a large balance due upon the bond at the commencement of this suit. Therefore the the action is prematurely brought.
    
      J. 11. Malone, also for appellant.
    
      W. P. Hill. for appellee.
    It is objected that the payment was, in part, in a bond executed by Robinson to the plaintiff in the judgment, and that no payment except in cash or in negotiable paper entitles the surety to sue liis principal for money paid.
    Tlie doctrine in the books has its origin and its reasons in the nature of the evidence, which was considered, technically, to he necessary to support the court for money paid. But the technical reasons for limiting tho modes of payment to cash and negotiable paper do not apply here. All the eases show that the principles of tlie law found the right of the surety to sue his principal upon the fact that the surety has satislied and discharged his principal’s liability to the crediior. (Dorshoimer v. Bucher, 7 Serg. & Rawle R., 9; Greiner’s listare, '2 Watts R., 414; Witherby v. Mann, 11 Johns. R., {510.')
    The right of the plaintiff hero to sue is established by proof that the liability of Gabriel Moore or bis legal representatives upon the. injunction bond was discharged by the plaintiff from the time of executing Robinson’s bond to B. T. Moore, or at any time before suit was commenced. A surety lias a right of action against his principal when he has paid the debt of his principal or procured his discharge by assuming- tiie payment of it himself. (Ingalls v. Dennett, 5 Greeul. 11., 79.)
    The test is this: Could B. T. Moore, the obligee in the injunction bond, have maintained a suit upon said bond against Gabriel Moore, the principal obligor therein, after having received in the manner stated by the witnesses, in cash and bonds, full payment and satisfaction of said judgment? “Was the judgment not satisfied by said payment? Could an execution have been enforced thereafter upon it? Could tiie satisfaction of the judgment have any other or less effect than, to satisfy the bond as in favor of the ‘obligee ? The creditor could not have two satisfactions; and one could have been pleaded in estoppel of any proceedings on the other. Is not Gabriel Moore and his representatives released from liability on said bond? And, if so, by whom, and by what means is he released ?
    That Gabriel Moore or his representatives can plead in bar the judgment and satisfaction of it in a suit against him on the bond, see Phill. E v., 2 Cow. & Hill’s Motes, 45; Witmer v. Schlatter, 2 Rawle It., 359-3GG; Curtis v. Groat, G Johns. R., 168; Livingston v. Bishop, 2 Mass. R., 171; Ward v. Johnson, 13 Id.. 148.
    _ A surety paying the bond debt of the principal would be placed in the situation of a creditor thus paid and entitled to all his rights. (Dorsheimer v. Bucher, 7 Serg. & R., 9; Griener’s Estate, 2 Watts R., 414; Lidderdale v. Robinson, G U. S. Cond. R., 65G; Lumpkin v. Mills, 4 Ga. R., 343.)
    If an executor, in the course of a regular discharge of his duty, advances money out of bis own purse to pay the debts against his testator, it is but just that he should stand in the place of the creditors thus paid, and enjoy their privileges. (Greiner’s Estate, 2 Watts’ R., 414.)
   Wheelee, J.

The assignment of errors embraces various matters which it is not deemed material to notice. Much of the argument of counsel for the appellant relates to the admissibility of evidence admitted without objection ar, the trial and other matters not properly presented by the record for revision.

The only question presented by the record which is deemed to require notice is as to the right of the plaintiff to recover in this action the balance of the amount for which he had become liable by giving his bond, but which he had not actually paid.

In treating of the proof necessary to entitle the plaintiff to recover under the count for money paid, Professor Greenloaf, in his Treatise on Evidence, says: •‘Whether the plaintiff can recover under this countwithout proof of the actual payment of money, and by only showing that he had become liable at all events to pay money for the defendant, is a point upon which there has been some apparent conflict of decisions. It has been held in England that where the plaintiff had given his own negotiable promissory note, which the creditor accepted as a substitute for the debt due by the defendant, lie was entitled to recover the amount under this count, though tiie note still remained unpaid. And it has also been held that where lie bad become liable for the debt by giving bis bond, though lie thereby procured the defendant’s discharge, lie could not. recover the amount from the defendant until lie liad actually paid the money due by tiie bond. Tiie latter rule has been adopted and followed by tiie American courts, on the ground that the bond is not negotiable nor treated as money in the ordinary transactions of business.” (2 Greeul. Ev., sec. 113.)

This distinction between the giving by the plaintiff of a bill of exchange or negotiable note, which has been accepted by the creditor in satisfaction of the •-¡ofendan t’s debt, and the giving of a bond or other security not negotiable, which has been in like manner accepted, seems to have been maintained by Hie English and American courts, and must be received as the settled law.' (Ib., aild in cases cited in notes; Chit, on Con., 5 Amer. ed., 592; 22 Stark. Ev., Part II., 7 Amer. od., p. 1060; 2 B. & Al. R., 51; 10 B. & C. R., 329, 346; 8 Johns. R., 202; 4 Pick. R., 447; 7 Serg. & Rawle R., 238.) While a discharge of the debt by the surety in the former mode will enable him to maintain the action for money paid, a discharge in the latter will not.

Prom this doctrine it results that in the present ease the plaintiff was not entitled to recover except for the amount actually paid, and the verdict was excessive, in that it included the amount remaining unpaid upon his bond. The judgment must therefore be reversed and the cause remanded, unless the appellee shall remit the excess improperly allowed by the verdict, in which «ease judgment will be rendered for the residue to which he is entitled.

Ordered accordingly.  