
    Benjamin S. Foster versus David N. Buffum.
    Where suits were simultaneously commenced against the maker and in; dorser of a promissory note, and judgment was obtained against the maker, which was satisfied, in the absence of any agreement to the contrary, the indorser is entitled to costs in the suit against him.
    This was a suit against. the indorser of a note signed by Sheppard Sawtell. Suits were commenced at the same time against the maker and indorser. Judgment was rendered against the maker and the execution which issued thereon was satisfied by a levy upon the real estate of the maker.
    This suit against the indorser was continued till after the satisfaction of the judgment against the maker, when the counsel for the plaintiff moved to enter neither party which was resisted by the opposing counsel, by whom costs were claimed; Weston C. J. allowed the defendant costs, to which the plaintiff filed exceptions.
    
      J. A. Poor, for the plaintiff.
    
      N. Wilson, for the defendant.
   The opinion of the Court was by

Sheplex J.

The plaintiff had obtained judgment against the maker of the note, and that judgment had been satisfied and paid, whthe this suit was pending against the indorser. It does not appear, that the defendant made any agreement to adjust this suit, or that the plaintiff could have recovered a judgment against him, if he had not satisfied his judgment against the maker. When this action came on for trial therefore the Court could not deprive the defendant of his right to pro-¡ ceed to trial; and the plaintiff having already received pay-; ment of the note, could not prevail against him; and the defendant, as the prevailing party, would be entitled to his costs,

Exceptions overruled.  