
    Collins v. Paris.
    Trincipad and Surety.—Delivery Bond.—Action.—Sale of Swrety’s Property. —Where the real estate of the surety has been levied upon and sold at sheriff’s sale, on an execution issued upon a judgment rendered against the principal and surety in a delivery bond, in an action thereon for a breach of its condition, the latter may, in an action against the former, recover as for money paid to his use.
    From the Greene Circuit Court.
    
      A. G. Gavins and JE. H. C. Gavins, for appellant.
   Biddle, J.

Suit by the appellee, against Elisha Collins and Samuel Howard, to recover for money paid to their use.

Only Collins answered.

General denial. Trial by the court upon an agreed statement of facts, which, unincumbered by dates and formalities, may be stated as follows:

Moses E. Bunn recovered a judgment against Elisha (Collins and Samuel Howard, for one thousand three hundred and thirty-four dollars and eighty cents. Execution was issued on the judgment, and a levy made upon a •quantity of corn, the property of Collins. A delivery bond for the com was executed by Howard, "W\ B. Harris •nnd the appellee. The corn was not delivered according rto the bond, but was used by Howard. Bunn then recovered judgment on the delivery bond against the makers. An execution was issued on this judgment, levied (upon the land of the appellee sold to Bunn, and a cerfificate of purchase issued to him by the sheriff.

.Upon .this statement of facts, the court found for the appellee, aud, over a motion for a new trial and exception,, rendered judgment on the finding.

This is right. The appellee was compelled by legal, proceedings to so far discharge the original judgment in favor of Dunn and against Collins and Howard. His-action, therefore, will lie for money paid to their use.

The judgment is,affirmed, with costs and ten per cent-damages.  