
    Samuel F. Morse versus John Williams & al.
    
    Where judgment was rendered against the principal and sureties on a note, and execution issued against them ; and by order of a surety, being one of the execution debtors, the principal was arrested on the execution, and gave a debtor’s bond ; and afterwards the surety, who ordered the arrest, paid the greater part of the demand to the creditor, and it was then agreed between the creditor and surety that a suit upon the bond should be prosecuted for the benefit of the latter: in the action on the bond, it was held, that the sum so paid by the surety should be taken as so much paid on the bond.
    Exceptions from the Eastern District Court, Allen J. presiding. '
    The parties agreed on a statement of facts, from which it appeared, that the action was on a poor debtor’s bond, dated' February 16, 1839. The judgment, on which the execution issued whereon the arrest was made, from which Williams was released on giving the bond, was founded on a note signed by him, and Peaslee and Smith, as his sureties, and was against the three. Williams was arrested on the execution by order of Peaslee, and gave the bond in suit with Davis, the other defendant, as his surety. In August following the giving of the bond, Peaslee paid the attorney of the creditor $60,00, being sonle less than the amount due ; and it was then “ agreed between the attorney and Peaslee, that the bond should be prosecuted for said Peaslee’s benefit; and on this consideration the sixty dollars were paid.”
    After the action was entered in the District Court, the defendants made an offer on the record to be defaulted for the sum of seven dollars and fifty cents, being the full amount due, if the sixty dollars paid by Peaslee are to be considered as a payment to be allowed on the bond.
    A nonsuit or default was to be entered, as the opinion of the Court might be ; and the Court were to determine the amount of damages.
    The District Judge directed that the defendants should be defaulted and judgment be rendered for the seven dollars and fifty cents ; and the plaintiff filed exceptions.
    The case was submitted without argument, and continued nisi.
    Washburn, for the plaintiff.
    
      Weston, Jr. for the defendants.
   At a succeeding term —

Per Curiam.

— We see no good reason why the judgment in the Court below should be reversed. The amount paid by Peaslee was in satisfaction of the judgment formerly recovered against himself as surety, and Williams, who was the principal defendant in that action, as well as in this. That judgment was therefore satisfied pro tanto. All that the plaintiff can now recover is, what remains unsatisfied of that judgment, which does not exceed, it seems, the amount for which judgment was rendered in the Court below.

The judgment in the Court below is therefore affirmed.  